Europe and the Americas : Transatlantic Approaches to Human Rights [1 ed.] 9789004279247, 9789004279230

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Europe and the Americas: Transatlantic Approaches to Human Rights

Europe and the Americas: Transatlantic Approaches to Human Rights Edited by

Erik André Andersen and Eva Maria Lassen

leiden | boston

Library of Congress Control Number: 2015936819

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-27923-0 (hardback) isbn 978-90-04-27924-7 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents About the Authors vii Introduction 1 Erik André Andersen and Eva Maria Lassen

Part I. Negotiating concepts and definitions The Beginning of the International Human Rights Era 15 1

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When Peers are Pressing for Progress: The Clash between Hersch Lauterpacht and John Humphrey over the Universal Declaration of Human Rights 16 Eva Maria Lassen Race, Social Struggles and “Human” Rights: Contributions from the Global South 41 Julia Suárez-Krabbe The Latin-American influence on European Human Rights Law 73 Jonas Christofffersen The Jamaican Broker: UN Diplomacy and the Transformantion of International Human Rights, 1962-1968 91 Steven L. B. Jensen The Past Discontinued: American and European Views on International Criminal Tribunals, 1918-1945 130 Erik André Andersen

Discourses Discussed 161 6

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From “Rights Talk” to “Human Rights Talk”: Transatlantic Dialogues on Human Rights 162 Helle Porsdam Law as Identity – Diffferent Identities and Diffferent Human Rights Conceptions in Europe and the United States 188 Sten Schaumburg-Müller

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Part II. Erratic frontiers of human rights Countries in Transition 213 8 9

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Regime Change in a Transitional Society: The Case of Ukraine 214 Srdjan Darmanovic Human Rights in and around Cuba: Monolithic Discourse or Actual Alternatives? 250 Jan Gustafsson The Latin American Spring: New Constitutions, Rights and Obligations? 276 Annali Kristiansen

Human Rights Borders Under Pressure 298 11

Torture: Europe and the Americas 299 Manfred Nowak and Karolina Miriam Januszewski 12 The Loaded Gun: The Obama Administration and the Legacy of George W. Bush’s “War on Terror” 337 Niels Bjerre-Poulsen 13 The Extraterritorial Use of Armed Drones and International Human Rights Law: Diffferent Views on Legality in the US and Europe? 360 Peter Vedel Kessing 14 Losing the Right to Have Rights: EU Externalization of Border Control 393 Martin Lemberg-Pedersen Index 418

About the Authors and Editors Erik André Andersen is Senior Researcher at the Danish Institute for Human Rights. He is an expert in Eastern and Central Europe, Russia and the former Soviet Union. He holds a PhD in political science on Eastern Europe from the University of Copenhagen. Among other things, he is working on the history of international criminal courts and on economy and human rights as well as on human rights indicators. From 2006-2014 he was a member of the Board of the Danish Institute for Human Rights. Niels Bjerre-Poulsen holds a PhD in American History from the University of California, Santa Barbara. He is Associate Professor in American History at the Center for American Studies, University of Southern Denmark. Among his recent publications is Niels Bjerre-Poulsen, Helene Balslev Clausen & Jan Gustafson (eds.), Projections of Power in the Americas (New York: Routledge, 2012). He is currently writing an international history of the Vietnam Wars, 1945-1975. Jonas Christofffersen dr. jur., has been Director of the Danish Institute for Human Rights since January 1, 2009. Jonas Christoffersen is admitted to the Danish Bar and licensed to meet before the High Court. He has also worked as a clerk in the Supreme Court (1998–1999) and as temporary judge in the Eastern High Court (2006–2007). As researcher at the University of Copenhagen, Faculty of Law (2000–2008) he focused in particular on the European Convention on Human Rights and the implementation of human rights in Danish law. Srdjan Darmanovic PhD, is Associate Professor at the University of Montenegro and was the first Dean of the university’s Faculty of Political Science until he became Montenegro’s ambassador to the United States in 2010. He is founder and President of the Center for Democracy and Human Rights (CEDEM), a non-governmental organization and think-tank based in Podgorica, Montenegro. Since 2005, he has been a member of the Venice Commission of the Council of Europe, working for the Commission’s Council for Democratic Elections and Sub-Committee for Democratic Institutions.

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Jan Gustafsson PhD, is Associate Professor at the Department of English, Germanic and Romance Studies at the University of Copenhagen. During 2010-2012 he was Director of the Center for the Study of the Americas, Copenhagen Business School and during 2004-2012 he was Associate Professor at the Department of International Business Communication, Copenhagen Business School. His main research areas include Latin American society, culture, history and literature; semiotics; cultural and social theory; travel writing. Karolina Miriam Januszewski is a research and teaching assistant at the Department of European, International and Comparative Law, Section for International Law and International Relations, at the Faculty of Law of the University of Vienna. Her research is focused on international and regional human rights protection, especially with regard to the role of non-state actors within the human rights architecture and the rights of detainees, as well as the interplay between different branches of international law. Steven L. B. Jensen is Researcher at the Danish Institute for Human Rights. His PhD (“Negotiating Universality: The Making of International Human Rights, 1945-1993”, University of Copenhagen in 2014) is based on archival work in 10 different countries and is an attempt to write a new international history of human rights during the Cold War. He was Visiting Researcher at Yale Law School in 2011 and has previously worked for the Danish Ministry of Foreign Affairs and UNAIDS. His most recent publication is “ ‘Universality should govern the small world of today: The Cold War and UN Human Rights Diplomacy, 1960-1968”, in the anthology Human Rights in Europe During the Cold War (Routledge 2014). Peter Vedel Kessing PhD, is Senior Researcher at the Danish Institute for Human Rights and lecturer at the Faculty of Law, University of Copenhagen. He has published extensively on armed conflict, security, counter-terrorism and human rights. He is a member of the Danish National Preventive Mechanism visiting places of detention (OPCAT); he is Danish national expert to the UN Sub-Committee for the Prevention of Torture; Danish expert to the Moscow Mechanism, Office for Democratic Institutions and Human Rights, OSCE. He is a member of the Danish Governments’ National Committee on International Humanitarian Law and member of the Danish Refugee Board handling asylum claims.

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Annali Kristiansen cand. jur., is a Senior Adviser with the Danish Institute for Human Rights, International Department. Working mainly with the rule of law and human rights, she coordinates activities in the Middle East and North Africa as well as co-operates with partners in Tunisia. She has directed the process leading to the brief The Constitutional Protection of Human Rights and has co-edited The Human Rights Education Toolbox: A Practitioners Guide to Planning and Managing Human Rights Education, both at the Danish Institute for Human Rights, Copenhagen, in 2012 and 2013, respectively (in Arab, English and Spanish). Eva Maria Lassen is Senior Researcher at the Danish Institute for Human Rights. She holds a PhD in History and is an expert on religious freedom, the history of human rights, and human rights and religious traditions. In 2007-2012, she was Research Director at the Danish Institute for Human Rights and she is currently a member of the Board of Administrators of the European Inter-University Centre of Human Rights and Democratization (EIUC), National Director of the European Master’s Degree in Human Rights and Democratization (E.MA) and Vice-chair of Humanity in Action, Denmark. She participates in the research project “FRAME: Fostering Human Rights among European Policies”, funded under the EU’s Seventh Framework Program. Martin Lemberg-Pedersen PhD, is Assistant Professor at the Centre for Advanced Migration Studies, University of Copenhagen, and a Country Coordinator for the European Website on Integration. He has been a Visiting Fellow at the Refugee Studies Centre, University of Oxford, and a Researcher for the Danish Refugee Council. His research focuses on border-, asylum- and integration policies, deportation schemes for unaccompanied minors, the privatization of border functions and postcolonial dynamics in transnational border control policies. Manfred Nowak is Professor of International Law and Human Rights at Vienna University and, in 2014, Austrian Chair Visiting Professor at Stanford University. He is also Director of the Ludwig Boltzmann Institute of Human Rights and Vice Chair of the EU Fundamental Rights Agency. From 2004 to 2010 he served as UN Special Rapporteur on Torture. He is author of more than 500 articles and various books in the field of international human rights.

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Helle Porsdam is Professor of American Studies at the University of Copenhagen. She holds a PhD in American Studies from Yale University and a dr. phil. from the University of Southern Denmark. She has been a Liberal Arts Fellow twice at Harvard Law School; an Arcadia Fellow at Wolfson College, Cambridge (2011); a Fellow of the Center for Advanced Study, Munich (2012) as well as a Global Ethics Fellow with the Carnegie Council for Ethics in International Affairs (2012- present). Most recently (2010-2013), she has been the project leader of CULTIVATE, a HERA (Humanities in the European Research Area, ESF) project on copyright, creativity and cultural heritage institutions. Sten Schaumburg-Müller PhD, dr. jur., is Professor at the Department of Law at the University of Aarhus. His main areas of interest include legal philosophy, human rights and media law with extensive publications within those areas. Among his publications are “In Defense of Soft Universalism : A Modest, yet Presumptuous Position”, in Cuadernos constitucionales de la Cátedra Fadrique Furió Ceriol, 62/63, 2011, and “Law as a Tale of Identity: Some Perspectives on Human Rights Law”, in Karen Margrethe Simonsen and Ditlev Tamm (eds.), Law and Literature: Interdisciplinary Methods of Reading, Jurist- og Økonomforbundets Forlag, København 2010. Julia Suàrez-Krabbe PhD, is Assistant Professor at the Department of Culture and Identity, University of Roskilde. With co-funding from the Danish Social Science Research Council she is currently involved in the research project “ALICE – Strange Mirrors, Unsuspected Lessons” coordinated by Professor B. de Sousa Santos at the Centre for Social Studies, Coimbra University, Portugal, financed by the European Research Council (FP/2007-2013). Julia’s research has emphasized questions of race and racism in relation to human rights, citizenship, development, anti-racist social movements, “other” knowledges, existentialism, theories from the south, and de-colonial social change.

Introduction Erik André Andersen and Eva Maria Lassen1

Not every project initiated on human rights succeeds brilliantly. Indeed, if the truth were known, not many of the hundreds if not thousands launched succeed at all. But from every endeavor to advance universal rights something is learned, something positive is left behind… This reflection serves to introduce a project, which became known as the Transatlantic Human Rights Dialogue.2 In this way the law professor, Kevin Boyle, who was among the first to link academic endeavours with human rights activism, referred to an attempt to establish a transatlantic human rights dialogue in the first decade of the 21st century. The background was the politically strained relationship between Europe and the United States in the aftermath of 9/11 and the ensuing “war on terror”. The partnership between Europe and the United States is instrumental to the development of a just world order: this was the view of Morten Kjærum and David Weissbrodt,3 the masterminds behind the initiative: There is no doubt that the United States and Europe share many common values; nonetheless the differing perceptions, if allowed to grow into insurmountable differences can have potentially damaging consequences for the promotion of a world order based on democracy and universal human rights. As the two strongest and most influential actors on the world scene, Europe and the United States have an obligation to seek common ground, thus providing crucial building blocks to the creation 1

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The editors wish to express their gratitude to Merete Borch, Department of International Business Communication, Copenhagen Business School. At the initial stages of this book project she was Centre Administrator at the Center for the Study of the Americas, Copenhagen Business School. She played an instrumental role in formulating the book project and formed part of the editorial group in the beginning of the project. Due to other work responsibilities, she had to withdraw from the editorial group, but much of the thinking behind and the structure of this book are owed to her. Kevin Boyle, “Transatlantic human rights dialogue”, in Rikke Fransk Jørgensen and Klaus Slavensky (eds.), Implementing Human Rights. Essays in Honour of Morten Kjærum. The Danish Institute for Human Rights, Copenhagen 2007, p. 270-276. p. 270. Directors of the Danish Institute for Human Rights and the University of Minnesota Human Rights Centre, respectively.

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of a just world. A Transatlantic Human Rights Dialogue can contribute to the establishment of such common ground.4 Kjærum and Weissbrodt expected that they would succeed in their endeavour because of a presumed shared cross-Atlantic commitment to human rights, providing a “common language for the dialogue”.5 Their hope was that “civil society could fill the gap” left by the political deadlock in the transatlantic relationship, and that academics and NGOs across the Atlantic could build networks and facilitate the dialogue. The overall aim of the dialogue was, “to facilitate a deeper understanding of underlying differences as well as the scope of shared values in the human rights perspectives of Europe and the United States”.6 Indeed, Europe and the United States share a common human rights heritage. The Americas and Europe have a common cultural background, which can be traced back to the end of the 15th century when the Europeans began to colonize the American continent – a colonization that was followed by mass migration from Europe to North and South America in the coming centuries. In 1689 England adopted a Bill of Rights, which contained classical freedom rights and protection against abuse of State power. The Enlightenment of the 18th century provided fertile ground for the development of civil rights on both sides of the Atlantic. When the 13 English colonies in New England liberated themselves from England and formed the United States of America, they created the American Declaration of Independence of 1776, which proclaimed liberty rights. In France the National Assembly adopted the Declaration of the Rights of Man and Citizens in 1789, and the 19th century witnessed the emergence of a large number of European “democratic” constitutions. These rights revolutions provided a common transatlantic approach – a shared Western value basis – to the future development of rights and democracy. In the words of the German historian, Heinrich Winkler: With the two Atlantic revolutions of the late 18th century, the American Revolution of 1776 and the French Revolution of 1789, the project of the West was essentially formulated. The West had a standard by which it could – and had to – measure itself.7 4 5 6 7

Boyle, 2007, p. 274. Boyle, 2007, p. 272. Boyle, 2007, p. 274. Quoted from the translation in Helle Porsdam, “Human rights: a possible civil religion?”, in Helle Porsdam (ed.), Civil Religion, Human Rights and International Relations.

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From these common ideological roots emerged human rights, which, as put by Danish cultural historian, Helle Porsdam in her chapter in the present book, has “been there as a yardstick” in both Europe and the United States.8 However, this common heritage notwithstanding, the above-mentioned Transatlantic Dialogue on Human Rights was not successful. Although preparatory meetings took place in New York and Copenhagen, involving a broad circle of human rights experts, academics and NGOs, the Dialogue was never officially launched and no concrete activities were implemented. The initiative was put on hold indefinitely, due as much to the unwillingness of those not already “converted” to take part in the dialogue as to financial constraints.9 This concrete transatlantic dialogue initiative may have failed but the reasoning behind the attempt to find common grounds for a transatlantic partnership in the global development of human rights as universal values is still valid. At the same time as globalization continues to bring the continents and the regions of each continent into closer contact, global challenges – notably the economic crisis, poverty, mass migration and climate change – have a profound impact on the universal development of human rights and democracy. A common transatlantic understanding of a human rights policy may prove instrumental in meeting these challenges, not least at the level of multilateral cooperation, for instance within multilateral human rights bodies such as the UN Human Rights Council. But complexity pervades human rights in a transatlantic perspective: the frontiers of human rights are moving forward (and sometimes backwards) at different speeds and in different forms, on both sides of the Atlantic. An example is the prohibition of torture, which in the first decade of the 21st century was further advanced in Europe, whilst in the United States experienced a decline (as discussed by Manfred Nowak and Karolina Miriam Januszewski in this book). More fundamentally, one of the lessons to be learned from the failed human rights dialogue mentioned is that the very concept of human rights is interpreted so differently that it can only with difficulty provide a common ground for a transatlantic dialogue. Only if this diversity as well as the malleability of the scope of human rights are properly understood and acknowledged can a forward-looking and shared transatlantic approach to

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Connecting People across Cultures and Traditions. Edward Elgar, Cheltenham, UK; Northhampton, MA, USA, 2012, p. 21-41 (p. 23). See Chapter 6. Boyle, 2007, p. 275.

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the development of human rights in world politics be negotiated in a way that goes beyond mere rhetoric. It is our hope that this book, by throwing light on this complexity from a historical as well as contemporary perspective can provide a basis for reinforcing the shared human rights values across the Atlantic, which in turn will support a shared human rights policy on the regional as well as international scene. In pursuing a comprehensive understanding of human rights in a transatlantic perspective, this volume takes a multi-disciplinary approach. Through conceptual discussions, by analysing different human rights topics in different regions and periods, and by focusing on a diverse range of actors involved – from policy makers and judicial institutions to academics and civil society – the authors of this volume identify key developments and characteristics, and the current status of human rights within a transatlantic framework. In this way, the volume provides a kaleidoscope of human rights. Traditionally, transatlantic approaches to human rights have focused on, on the one side, the United States, and on the other side, Europe. This book includes Latin America as well. There are several reasons for this. First, Latin American states and human rights activists have played a significant role in the definition of the international human rights standards, demonstrated as early as the 1940s (and the topic of several chapters in this book). Secondly, it is likely that the Latin American region will become a key player in the world politics of the future, including human rights policies. In building a transatlantic partnership with a shared focus on the development of universal human rights, it is important to understand the contributions and characteristics of the Latin American region. The book is divided into two parts. Part I (Chapters 1 to 7), entitled “Negotiating Concepts and Definitions: Past and Present”, traces some of the historical developments in the Americas and Europe that have influenced the establishment of international human rights standards. This part also focuses on theoretical and conceptual discussions of human rights and on how human rights have historically been negotiated, within each region and across the Atlantic. Part II, entitled “Erratic Frontiers of Human Rights” (Chapters 8 to 14), throws light on human rights in practice. The chapters in this part include discussions of human rights enforcement mechanisms in Europe and the Americas respectively, human rights in countries of transition, and issues of topical interest to the transatlantic human rights debates, including the war on terror, torture, and immigration policies.

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Negotiating Concepts and Defijinitions: Past and Present

The Beginning of the International Human Rights Era In the beginning of the 20th century, numerous attempts were made on both sides of the Atlantic to promote the idea of human rights. Such efforts reached a temporary culmination with the Universal Declaration of Human Rights of 1948, proclaiming human rights as universal values. Already during the process of formulating the Universal Declaration it became evident, however, that rather than sharing a unified transatlantic understanding of human rights, the Americas and Europe would often adopt conflicting approaches to and conceptions of human rights, just as within each region different viewpoints could be observed. In the scholarly world of international law, the views on universal human rights did not follow the regional and political divides. In Chapter 1 of this book, entitled “When Peers Are Pressing For Progress: The Clash of Hersch Lauterpacht and John Humphrey over the Universal Declaration of Human Rights”, Eva Maria Lassen explores the debates about an international bill of rights that took place among international lawyers in the 1940s. As a means of analysing the discussions about the formulation of the Universal Declaration as played out by international lawyers at the time, Lassen focuses on the dispute between John Humphrey, the first Director of the Human Rights Division of the UN Secretariat and a most enthusiastic promoter of the Declaration, and Hersch Lauterpacht, one of the most eminent international lawyers of the time and allegedly the most brilliant and critical opponent of the Universal Declaration of Human Rights. The chronological development of the dispute between Lauterpacht and Humphrey will provide the framework for the analysis, with a starting point in 1942, when Lauterpacht began his work on a proposal for an International Bill of the Rights of Man. The impact of the debate on later perceptions of the history of the Universal Declaration will be discussed. Finally, the chapter draws some parallels to the modern world, in which the question of the evolvement of international human rights instruments and enforcement mechanisms is still under debate, but where international lawyers play a different role on the international human rights scene than in the 1940s. The following chapters direct attention to the role of Latin America in the human rights history and in the early formation of human rights standards. In Chapter 2, “Race, Social Struggles and ‘Human’ Rights: Contributions from the Global South”, Julia Suárez-Krabbe presents some central antecedents to contemporary human rights thinking, paying special attention to two historical periods – that of the conquest and colonization of America, and that of

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the independence and republican period in Latin America. Both periods, she argues, are best understood by taking into account the transatlantic power struggles that took place at the time. Thus, the period of conquest and colonization is marked by the relations between the indigenous and slave populations vis-à-vis Spanish colonial powers, and the period of independence and republicanism by these movements in relation to (Northern) Europe, but also to indigenous and black populations on the American continent. During the colonial period the modern notion of humanity emerges, together with the idea of “the rights of peoples” and international law, while the period of independence and republicanism gives birth to ideas of freedom and racial equality. The chapter aims to expand our knowledge of the history of human rights in a Latin American context, and to contribute to an understanding of current critiques that some Latin American social movements are currently launching at these. Chapter 3, entitled “The Latin American Influence on European Human Rights Law”, takes us back to the debates of 1948 about a Universal Declaration of Human Rights, from the perspective of Latin America. Jonas Christoffersen analyses how Latin American human rights thinking, characterised by a broad and holistic perception of human rights, in particular through its impact on the Universal Declaration on Human Rights, came to influence European human rights law in the aftermath of the Second World War and beyond. More specifically, the chapter analyses how Latin America, in the years immediately before, during and after the Second World War, brought forward several human rights initiatives in the form of conferences, declarations and proposals. This trajectory of Latin American human rights thinking is traced through an analysis of legal concepts such as proportionality, diversity, duties of individuals, and limitation of rights. The author argues that the holistic thinking underlying Latin America’s human rights thinking has made the present-day international human rights law and practice a flexible instrument adaptable to different situations and countries. Steven Jensen brings us further forward in time, to the 1960s. In Chapter 4, entitled “The Jamaican Broker: UN Diplomacy and the Transformation of International Human Rights, 1962-1968”, he argues that an important diplomatic breakthrough for the international human rights law project happened in the shadow of the Cuban Missile crisis in 1962, namely during the annual UN General Assembly session when one Caribbean country, Jamaica, held the world’s attention. Immediately following its independence in August 1962, the Jamaican government placed human rights at the forefront of its foreign policy, and made a proposal in line with this position during the country’s first speech to the UN General Assembly in October that same year. The pro-

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posal provided a new framework for UN human rights diplomacy up until 1968. In the following years Jamaica went on to act as a skillful facilitator of this work in the context of the Cold War and the decolonization processes. In fact, Jensen argues, Jamaica came to be the most important broker of UN human rights diplomacy in the 1960s – the crucial breakthrough decade for the human rights project in global affairs. The author further suggests that the legacy of Jamaica’s efforts is still with us in today’s human rights work. Chapter 5, “The Past Discontinued: American and European Views on International Criminal Tribunals, 1918-1945”, focuses on a comparison of human rights approaches of the United States and Europe, as expressed in the establishment of international criminal tribunals. The author, Erik André Andersen, looks back at the changing perceptions of the United States and the United Kingdom in their respective war crimes policies. Both after the First and Second World War, the victorious allies were confronted with the dilemma of how to treat the defeated enemies, and Andersen discusses the different and mutually interchanging viewpoints to be found in the United States and Europe with regard to the prosecution of the most responsible perpetrators in Germany, the Ottoman Empire/Turkey and Japan after the two world wars. Should the most responsible perpetrators be executed summarily without giving them the benefit of a trial, or would it be possible and advisable to establish an international criminal tribunal in order to maintain legality based on rule of law and by implication also giving the accused the possibility to be acquitted? Both Americans and Europeans changed their own point of view and took over the other part’s point of view. While the United Kingdom (and France) favoured the legal procedure in the aftermath of the First World War, the very disappointing experiences connected with practical implementation of the tribunals made them change their point of view at the end of the Second World War to be in favour of summary execution of the most responsible perpetrators. In contrast, the United States being very hesitant to accept the idea of international criminal tribunals after the First World War became the driving force for the establishment of international criminal tribunals after the Second World War. The chapter argues that perceptions on war crimes policy and international criminal law were largely determined by war weariness, sheer coincidences and a narrow power struggle in the US government, rather than ideological differences. Thus the most famous landmark in international criminal justice, the Nuremberg proceedings, to which everyone refers when establishing new international criminal tribunals and courts in the 1990s and onwards, came about through a complicated historical process spanning over more than two decades. At the same time, the landmark thus created was not solely

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what may be called an almost artificial result. It was based on a common, long-term and universal human rights norm, providing the right also of socalled arch criminals to defend themselves. Discourses Discussed On both sides of the Atlantic and among both academics and non-academics, rights play a major role in discussions on societal identity, politics and culture, but the discussions are often framed differently, indicating different perceptions of human rights in Europe and the Americas, respectively. These differences are the focal point of Chapter 6, “From ‘Rights Talk’ to ‘Human Rights Talk’: Transatlantic Dialogues on Human Rights”. Helle Porsdam takes her point of departure in the fact that a number of transatlantic tensions come together or are expressed in the area of human rights. The chapter analyzes two human rights areas or issues on which there is disagreement. The first of these relates to the core of human rights, the kinds of (human) rights emphasized by the two parties, and the second concerns their attitudes toward international law and international human rights regimes. Whereas Americans tend to think that the core of human rights consists of so-called “first generation rights” only (the civil and political rights), many Europeans also emphasize the importance of “second generation rights”, including economic, social and cultural rights in the category of human rights, as a foundation for their welfare states. And when it comes to the international human rights regimes, Europeans are, again generally speaking, more willing to promote international law and human rights institutions than are Americans – even at the “cost” of subsuming national law and national concerns under those of supranational law. These differences notwithstanding, the chapter argues that there is potential for the development of a shared, transatlantic discourse on human rights. Porsdam’s discussion takes as its point of departure the fact that the law is central to the formation of European and American approaches to human rights. This argument is taken a step further in Chapter 7, entitled “Law as Identity: Different Identities and Different Human Rights Conceptions in Europe and the United States”. Here, Sten Schaumburg-Müller argues that human beings are gregarious, using norms to identify the group to which we belong. Thus, an entity, including nations and regions, is identified not only by how it behaves but also by how it ought to behave. We are, to some extent, what we ought to be. From this perspective law, including human rights law, is an important identity marker and maker; not only a technical way of solving problems or a self-evident truth. This seemingly inbuilt drive to use law

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as a means of distinguishing one group from another challenges the claim that human rights are universal and without distinctions of any kind. The chapter argues that this challenge should be addressed rather than ignored. The author explores the idea of linking groups, norms and identity to bring new perspectives to the differing European and US American human rights perceptions and to the rather unexplored relationship between universal, regional, national and even local human rights conceptions.

Part II. Erratic Frontiers of Human Rights Countries in Transition Towards the end of the 20th and the beginning of the 21st century, positive human rights developments took place both in Europe and the Americas. In Central and Eastern Europe, the institutional protection of peace, welfare, democracy and human rights became a strong normative force. Regime changes took place in many countries in the region, with some states settling into semi-permanent transitional democracies. A case-study is provided in Chapter 8, “Regime Change in a Transitional Society: The Case of Ukraine”, where Srdjan Darmanovic analyzes the various attempts at regime change in Ukraine after the disintegration of the Soviet Union in 1991. Following a theoretical presentation of different models of transition, Darmanovic divides the transition process in Ukraine into two phases. The first transition, 1991-2004, is called “independence and hybrid regime”, while the second transition after 2004 is characterised as “a revolution with no results characterized by ineffective pluralism”. The chapter illustrates how democratic transition is not an irreversible process with a guaranteed positive outcome in terms of democracy and human rights. A transition can begin and never finish. After 2010, when the former Prime Minister Victor Yanukovych returned to power and became President, Ukrainian society entered a period of constitutional crisis, possibly reversing into a system of competitive authoritarianism. Against this background, the author asks whether the country will continue a vicious cycle of failed transitions, or whether the last 20 years have, in fact, resulted in sufficient economic and political openness and strengthening of the political opposition and civil society to eventually facilitate a full democratic transition with human rights as an integral part of society. On the other side of the Atlantic, Cuba took cautious steps towards a somewhat more human rights-oriented thinking. In Chapter 9, “Human Rights in and around Cuba: Monolithic Discourse or Actual Alternatives?”, Jan Gustafsson discusses initially the current process of socio-economic change in Cuba,

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and discusses some of the consequences – and paradoxes – of this process, especially in the light of the ongoing discussions about human rights in the island since the first years of the Revolution. The author analyses some fundamental mechanisms of power of the revolutionary governments as manifest already since the early 1960s. The analysis focuses on the regime’s nationalistrevolutionary ideology and its mechanisms of inclusion and exclusion, which, it is argued, have had more profound consequences for the general population than more specific repressive acts against dissidents and opponents. Taking as example a film of extraordinary significance in Cuba’s recent history, Strawberry and Chocolate (1994), the human dimension of the exclusion mechanism is discussed further. Some later developments and growing limitations of the mechanisms of power and subjectivation are described, partly in relation to the problem of the Cuban diaspora and the growing transnational dimension of Cuban society. Finally, the author returns to the current process of change and discusses some of its potential implications for human rights in a broad understanding of the concept, including the right to a more pluralistic understanding of what the ‘good’ citizen is. In the past decade, a number of Latin American states have set new human rights standards, notably in their constitutions. In Chapter 10, “The Latin American Spring: New Constitutions, Rights and Obligations?”, Annali Kristiansen (in consultation with Gonzalo Abad-Ortiz) examines some of these recent constitutional reforms. Exploring the perception of rights that emerges in the (continual) reform processes in Latin America, the author discusses whether these processes lead to the emergence of new human rights. She first provides a brief socio-political analysis of recent reforms and insight into the constitutions of Bolivia and Ecuador, and against this background analyses two components common to these constitutions: First, the emerging concept of pluri-national (Bolivia, Ecuador) that attributes equivalence to all nationalities in a state or country rather than personifies one state as one nationality; and second, the apparent democratization of society, whereby the people are given access to participation and new forms of inclusion. This is followed by an analysis of selected rights established in the constitutions. The author argues that whereas some human rights that were previously laid down in law have been elevated to the constitutional level, some rights and concepts are new, although to a high degree reflecting the existing socio-cultural make-up and legacy of the Andean region.

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Human Rights Borders under Pressure Whilst in some areas the beginning of the 21st century witnessed a strengthening of human rights in both Europe and the Americas, this was also a time of more challenging developments, which following 9/11 and the Bush Administration’s so-called “war on terror” came to put an enormous strain on transatlantic human rights relations. One issue of particular discord concerned the question of torture. This topic is analysed by Manfred Nowak and Karolina Miriam Januszewski in Chapter 11, entitled “Torture: Europe and the Americas”. The authors start out by sketching the historical development of torture as a legal method of extracting confessions as well as the history of the emerging prohibition of torture. They then demonstrate how in the second half of the 20th century and even more so during the first decade of the 21st century, the developments in Europe, North and Latin America were drifting in different directions. The European Convention on Human Rights and the EU Charter of Fundamental Rights both contain absolute prohibitions of torture, other forms of ill-treatment and the death penalty, and the European Union is at the forefront of the universal campaign to abolish capital punishment. As far as Latin America is concerned, the systematic practice of torture, summary executions and enforced disappearances during the time of the military dictatorships of the 1970s explain why in recent decades the Group of Latin American States has played such an important role in the United Nations to advance the international system for the protection of human rights, including the universal abolition of torture and capital punishment. Although the United States was crucial in establishing the human rights protection mechanisms of the United Nations and the OAS, the US Government already in the 1950s started to follow a policy of “US exceptionalism”. There is a strong US opposition to the International Criminal Court and reluctance to ratify core UN human rights treaties (e.g. CRC, CEDAW and ICESCR) and to accept the right of individuals to lodge human rights complaints against the US Government. Even with respect to UN treaties ratified by the US, such as the International Covenant on Civil and Political Rights and the Convention against Torture, they were only accepted with far-reaching reservations, which are contrary to the object and purpose of those treaties. The so-called “war on terror” launched by the Bush Administration in reaction to the terrorist attacks of 11 September 2001 undermined most domestic and international “standards of decency”, the rule of law and human rights, including the absolute prohibition of torture, cruel, inhuman or degrading treatment or punishment.

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introduction

Chapter 12, “The Loaded Gun: The Obama Administration and the Legacy of George W. Bush’s ‘War on Terror’”, zooms in on 9/11 and the US war on terror. Niels Bjerre-Poulsen recounts how the Bush administration under the label of “war on terror” attempted to reinterpret the US Constitution to legitimize a radical expansion of presidential power, expanding the available constitutional options for the president and likewise limiting the roles of the other branches of government, thus removing individual rights of detainees as well as democratic safeguards in the name of efficiency and security. Some of the Bush administration’s claims to power have been retracted under the Obama administration, just as some democratic safeguards have been put back in place. However, Bjerre-Poulsen argues that so far, President Obama has been less willing than Presidential Candidate Obama was to voluntarily give up prerogatives. The article discusses the possible implications in connection with perceived future threats to national security. In recent years, the use of “armed drones” has added to the human rights challenges faced by the US and its rapport with Europe, a topic addressed by Peter Vedel Kessing in Chapter 13, entitled “The Extraterritorial Use of Armed Drones and International Human Rights Law: Different Views on Legality in the US and Europe?”. There has been much debate about the US’s targeted killings of individuals outside areas of active hostilities in e.g. Pakistan, Yemen and Somalia, using armed drones, which are fully controlled and operated primarily by the CIA via satellite from US territory. Vedel Kessing discusses the use of armed drones and international human rights law, setting out with a brief description of the US position on use of armed drones and international law. He then discusses when the use of lethal force against an individual is justified under the right to life in international human rights law, and more specifically whether US drone operations are in conflict with the right to life in international human rights law. The author concludes that the use of armed drones can almost never be considered legal under international human rights law. The question is, however, whether the US is bound by international human rights obligations when carrying out armed drone strikes. US drone operations are carried out on the territory of other States, most often in situations involving armed conflict. It is the firm position of the US that international human rights law is irrelevant in these situations, insofar as it is only applicable on US territory and that international human rights law is overruled by international humanitarian law in times of armed conflict. The chapter discusses and questions whether this view can be maintained. Finally, the chapter briefly assesses whether the US and Europe present different views on the legality of use of armed drones, arguing that it is of utmost

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importance that States seek to reach international consensus on the use of armed drones outside areas of armed conflict. Since the beginning of the 21st century, the gap between human rights standards and their implementation has steadily increased. The current global economic crisis and the political changes in the Middle East are but two of the factors that have contributed to a serious crisis for human rights. A concrete example concerns the ways in which states handle the increasing flow of migrants. In Chapter 14, “Losing the Right to Have Rights: EU Externalization of Border Control”, Martin Lemberg-Pedersen critically examines EU externalization of asylum and migration control to third countries with a particular focus on North Africa. The structural development of this external dimension of the EU’s migration control is traced through central EU documents on Regional Protection Programmes and migration control paving the way for cooperation with countries like Libya via financial programmes and activities boosting their control and surveillance capacities. Moreover, EU practices made possible through the 2003 Dublin Regulation, like the “country of first arrival” and “safe third country” concepts as well as the role they play for Readmission Agreements between European and African countries are analyzed. These processes are understood as constituting a decentralized functional system of control that spans both European and African countries as well as private actors like security companies, migrant smugglers and traffickers. The chapter then proceeds to conceptualize the grave humanitarian concerns that arise in connection with the consequences of European externalization. Based on fact-finding missions conducted by humanitarian NGOs it is argued that this border system in effect places migrants in a quasi-permanent state of forced mobility, termed border-induced displacement. As many of the EU partners in externalization have been repressive regimes and police states, the migrants’ situation have been characterized by exploitation, abuse and hazardous conditions and thus systematically violates a number of fundamental human rights as well as rights accorded to them under the Refugee Convention. Having discussed this humanitarian dimension of externalization the chapter finally offers some paths through which the European border system could be made more protection-sensitive and thus respect migrants’ human rights.

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introduction

Literature Boyle, Kevin, “Transatlantic human rights dialogue”, in Rikke Fransk Jørgensen and Klaus Slavensky (eds.), Implementing Human Rights. Essays in honour of Morten Kjærum. The Danish Institute for Human Rights, Copenhagen 2007, p. 270-276. Porsdam, Helle, “Human rights: a possible civil religion?”, in Helle Porsdam (ed.), Civil Religion, Human Rights and International Relations. Connecting People across Cultures and Traditions. Edward Elgar, Cheltenham,Uk; Northhampton, MA, USA, 2012, p. 21-41.

Part I. Negotiating concepts and definitions The Beginning of the International Human Rights Era

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chapter 1

When Peers are Pressing for Progress: The Clash between Hersch Lauterpacht and John Humphrey over the Universal Declaration of Human Rights Eva Maria Lassen

Lauterpacht delivered a brilliant but devastating talk to the International Law Association on human rights. john humphrey, 31 August 19481

Introduction The debates on the Universal Declaration for Human Rights that took place within the academic and intellectual circles of international law in the 1940s were less visible than those displayed on the political scene, but were nevertheless fierce and important. Illuminating the controversy over the creation of the Universal Declaration as played out by international lawyers at the time, this chapter will focus on the debate between John Humphrey, the first Director of the United Nations Division of Human Rights and an enthusiastic promoter of the Declaration, and Hersch Lauterpacht, one of the most eminent international lawyers of the time and allegedly the most brilliant opponent of the Declaration. The chapter will analyse the controversy between Lauterpacht and Humphrey in the context of the debate of other international lawyers across the Atlantic, in particular the International Law Association. The chronological development of the dispute between Lauterpacht and Humphrey will provide the framework for the analysis, with a starting point in 1942, when Lauterpacht began his work on a proposal for an International Bill of the Rights of Man. The impact of the debate on later perceptions of the history of the Universal Declaration will be discussed. Finally, the chapter draws some parallels to the modern world in which the question of 1

John Peters Humphrey, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, 4 volumes. Edited by A.J. Hobbins. Fontanus Monograph Series 4, 9, 12 and 13, McGill-Queen’s University Press, Montreal 1994-2001. (Vol I, p. 1994, p. 36).

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the evolvement of international human rights instruments and enforcement mechanisms is still under debate, but where international lawyers play a different role on the international human rights scene than in the beginning of the 1940s.

The Two Players: Hersch Lauterpacht and John Humphrey Hersch Lauterpacht and John Humphrey were born on either side of the Atlantic, and came to international human rights law from different personal backgrounds. Lauterpacht was born in 1890 into a Jewish family in a part of the Austro-Hungarian Empire which was to be included in Poland after the First World War.2 The family moved to Vienna in order for the young Lauterpacht to continue his studies. In 1923, probably in part spurred by anti-Semitism in Austria, Lauterpacht settled in England,3 where he soon became a rising star among international lawyers of Great Britain. He was appointed Professor of International Law at the University of Cambridge in 1935. Within the circle of international lawyers who influenced the development of international human rights law, Lauterpacht belonged to those who had, to use the words of Bernstorff, “an open reformist agenda”.4 His early experience of anti-Semitism undoubtedly played a role in his early engagement in the promotion of an international legal system which protected minorities and more generally promoted human rights.5 Throughout his professional life he maintained that it was the role of international law to protect individuals if the State fails, and the growing anti-Semitism of the 1930s pushed him to argue in favour of enforceable human rights law, as expressed in his memorandum, a legal argument entitled “Persecution of Jews in Germany”, written in 1933 and intended as a supplement to Professor Bentwich’s Memorandum

2

3 4

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See e.g. Ana Filipa Vrdoljak, “Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law”, The European Journal of International Law (EJIL), 2009, Vol. 20 No. 4, pp. 1163-1194. Elihu Lauterpacht, The Life of Hersch Lauterpacht. Cambridge University Press, Cambridge 2012, p. 39. Jochen von Bernstorff , “The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law”, The European Journal of International Law (EJIL), Vol. 19, No. 5, 2008, pp. 903-924. (p. 906). Vrdoljak, 2009, p. 1167.

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of the Jewish Agency addressing the League of Nations on the issue of the persecution of Jews in Germany.6 15 years Lauterpacht’s junior, John Humphrey was born in 1905 in New Brunswick in Canada. After a childhood darkened by personal tragedy (both his parents died when he was a young child and at the age of six his left arm was amputated after an accident), he earned three bachelor degrees (Civil Law, Commerce, the Arts) from McGill University. He practiced law from 1930 and was greatly involved in work on social welfare in Canada. In 1937 he took up a teaching position at McGill Faculty of Law. Here, in the early 1940s, he met Henri Laugier, a refugee and member of the French resistance. The friendship with Laugier was to catapult Humphrey into the centre of the international human rights scene. After having been appointed Assistant Secretary-General to the United Nations in 1946, Laugier invited Humphrey to become the first Director of the United Nations Division of Human Rights, placed within the United Nations Secretariat. Henceforth human rights became the main occupation of Humphrey, who was to be the driving force in the creation of the Universal Declaration. Humphrey, then, had a foot in both camps: in the UN as well as in academia and the circle of international lawyers – although over the question of the Universal Declaration, he would take, as we shall see, a firm stand in favour of his UN employer. Lauterpacht, in contrast, did not belong to the inner circle involved in the process of creating the Universal Declaration. Despite his obvious qualifications, he was not chosen by the British government to be part of the British delegation to the UN Committee, for the doubtful reason that civil servants of the Foreign Ministry viewed him as “Jewish and foreign” (he had, in fact, been a resident in the UK since 1923 and a British national 6

Hersch Lauterpacht, ”The Persecution of Jews in Germany”, 1933, reprinted in International Law: Being the Collected Papers of Hersch Lauterpacht, (edited by Elihu Lauterpacht) Volume 5 – Disputes, War and Neutrality, Parts IX-XIV, pp. 728-737. Going through the legal possibilities of international action through the League of Nations, and referring to treaties of 1878 and 1919 against minorities because of their race or religion, Lauterpacht claims that: “The democratic principles of political freedom of the individual have suffered an eclipse at a time when democratic government has ceased to be the rule in a number of countries… No specific rule of conventional international law binds Germany not to persecute her Jewish minority, but the prohibition of discrimination has become part of what has been called the public law of Europe... the principle that in the modern State individuals must not be persecuted or discriminated against because of their race or religion does enjoy general recognition as part of the public law of the world… there has been a growing tendency to regard the individual as a subject of international law in many respects.” Lauterpacht, 2004, p. 732.

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for 15 years).7 Lauterpacht’s views on the Universal Declaration were therefore asserted from outside the UN, through his own writings and his active participation in the International Law Association. Thus the dispute between Lauterpacht and Humphrey over the Universal Declaration was carried out on the common ground of international law but from different perspectives.

1942-45. Lauterpacht’s International Bill of the Rights of Man In the spring of 1942 – several years before a first draft of the UN Universal Declaration had seen the light of day – the American Jewish Committee approached Lauterpacht, inviting him to write a book on international law.8 He accepted the invitation and completed the writing in the autumn of 1943 – well before the Dumbarton Oaks proposals in the fall of 1944. The 225 pages long book, entitled International Bill of the Rights of Man, appeared in print in June 19459 – at almost the same time as the drafting of the UN Charter was completed at the San Francisco Conference.10 The proposed Bill was a product of years of thorough reflection, samples of which appeared in print years earlier (for instance, in his 8th edition of Oppenheim’s International Law). In what follows, Lauterpacht’s reflections on the lessons of history will be described, to form a starting point for an analysis of the proposed Bill itself.

Lessons of History Lauterpacht’s book consists of the Bill itself as well as thorough commentaries on each section of the Bill. The commentary builds its arguments on a particular view of the historical evolution of human rights as well as on a number 7 8 9 10

Lauterpacht, 2012, p. 257. Lauterpacht, 2012, p. 251. Lauterpacht, 2012, p. 254. Within a few months of the publication of the book, Lauterpacht was at work on a revised second edition to take into account the development that had occurred in the meantime, principally with adoption of the UN Charter, but a second edition never materialized. Instead, two other proposals of an International Bill of Rights followed from his hand, namely a proposal submitted to the Brussels Conference of the International Law Association in 1948 and a proposal which appears in his book, Hersch Lauterpacht, International Law and Human Rights, Stevens and Sons Limited, London 1950. The main principles of the first proposal, of 1945, were retained in the two later texts; see here Lauterpacht, 1950, p. 321.

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of texts (for instance, ILO regulations, national constitutions, and initiatives and mechanisms of the League of Nations) which throws light on experiences, from which, in Lauterpacht’s view, lessons could be learned with a view to the development of modern international human rights law. Finding in history an extraordinary source of inspiration for and insight into modern perceptions of international law, two endeavours – developing contemporary international law and exploring its history – are profoundly linked in his work. His writings sometimes reflect and sometimes depart from views that were prevalent in his day. In a number of respects they point the way forward to new fields of historical exploration. Lauterpacht’s history of human rights is predominantly but not exclusively a Western history. In the context of this chapter it should be emphasized that the traditional construction of the Western history of human rights – the history which Lauterpacht endorses – includes US history, notably the American Declaration of Independence of 1776; no conflict between Europe and the US in the approach to human rights is detected in this history. His perception of the Western history of political and legal thought is born from his search to find the proper relationship between the State and the individual, in which the latter is protected from the former’s abuse of power.11 Human rights grew out of the principle of equality among humankind and “the innate rights of man appertaining to him as a human being.” This principle was embedded in the notion of natural law, created by the Greek Stoics and subsequently developed by the Romans and the Christian Fathers.12 Although mainly interested in the history of ideas, Lauterpacht saw the doctrine of the law of nature as firmly based in historical realities, for in-

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“… the relation of the individual to the State has always been the main problem of law and politics. That problem has consisted in the reconciliation of two apparently conflicting factors. The first is that the State, however widely its object may be construed, has no justification and no valid right to exact obedience except as an instrument for securing the welfare of the individual human being. The second is that the State as a political institution has come to be recognized as the absolute condition of the civilized existence of man and of his progression towards the full realization of his faculties. It is a matter of absorbing interest to note that in the history of political and legal thought and action the conflict between those two factors has been bridged by the notion, appearing under various disguises, of the fundamental right of the individual, of the natural, or inherent, or inalienable rights of man.” : Hersch Lauterpacht, An International Bill of the Rights of Man, Columbia University Press, New York, 1945, p. 16. Lauterpacht, 1945, pp. 16-21.

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stance coming across in the “humanitarian decrees of the [Roman] emperors for the protection of slaves.”13 The constitutional endorsement of natural rights by individual nation states, which took place in many of the new Western democracies, was not in itself sufficient to protect the rights of man. International recognition of human rights had to become part of positive law. In other words, the culmination of the history of human rights would be the creation of a system of international human rights law that is enforceable by appropriate legal instruments: The rights of man cannot, in the long run, be effectively secured except by the twin operation of the law of nature and of the compelling force of the law of nations – both conceived as a power superior to the supreme power of the State.14 This takes us to the 20th century and to Lauterpacht’s own time. His argument in favour of binding and enforceable international human rights was, in his view, pragmatically based on the lessons learned from history, in particular from looking at the period between the two World Wars, where an international system in the form of the League of Nations had been in place, but with no means of enforcement. Lauterpacht’s efforts to promote binding and enforceable human rights were, then, originating in a pragmatism which built on history. The Catalogue of Rights The Lauterpacht Bill contains a Preamble and three parts. The Preamble starts with a reference to a quotation of Churchill, who in a message to the World Jewish Congress in London 1942 expressed the hope that the war would end with “the enthronement of human rights”. As later was to be the case with the Universal Declaration of Human Rights, Lauterpacht’s Preamble includes Roosevelt’s Four Freedoms. Part One and Part Two contain the provisions of the Bill, political and civil rights and social and economic rights (including the rights of ethnic, linguistic, and religious minorities), respectively. Part Three covers the implementation, supervision and enforcement of the Bill by means of both national and international instruments. The proposed bill was intended as a legally binding document and contains suggestions for instru13 14

Lauterpacht, 1945, p. 20. Lauterpacht, 1945, p. 28.

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ments of enforcement. The text is formulated in such a way as to put emphasis on the obligations of the States. Lauterpacht’s self-perceived pragmatism comes across in his view of the position of social, economic and cultural rights in international human rights law. Like other leading international lawyers and politicians of his day he believed that the political and personal freedom of the individual suffers if he or she experiences substantial economic and work-related insecurity, and lack of educational opportunity. To Lauterpacht this meant, first, that as a general principle social and economic rights should be seen as indivisibly connected with political and civil rights, second, that both categories of rights must be made legally binding upon the States as well as enforceable. Social and economic rights are not, however, necessarily to be enforced by means of juridical instruments.15 As he was to explain more fully a few years later in his book, International Law and Human Rights: At the same time it is difficult to deny that social and economic rights cannot be made part of the enforceable law in the same way as other rights. They are not so, as a rule, within the State. … The difficulty surrounding this problem can be solved by giving to social and economic claims a place in an enforceable bill of rights without making such enforcement primarily judicial in character.16 However: States shall, within the limits of their economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness, disablement and other cases of undeserved want. (Article 13 of the Bill). Lauterpacht’s proposed Bill of Rights of Man omits explicit mention of prohibitions against discrimination on account of gender.17 In other words, he did not advocate for a dynamic development of law as far as women were concerned. His reason for this omission, which he explains in the Comments to the Article, is again pragmatic rather than ideological: the reactionary attitude of the states in this area leads him to conclude that women’s equal rights have to be a matter of an evolution taking place outside the Bill of Rights. 15 16 17

Lauterpacht, 1945, p. 90 and p. 155. Lauterpacht, 1950, pp. 285-86. See here Article 7 (discrimination clause). Lauterpacht, 1945, p. 115.

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In this way, the declaration is, in his own words, “incomplete”, but: “account must be taken of the existing possibilities, as well as of the necessity of not impeding the acceptance of the Bill, whose principal provisions guarantee the fundamental rights both of men and women”.18 In his approach to minority rights, on the other hand, he is acutely aware of the fact that the provisions of protecting minorities which existed within the realm of the League of Nations (the Minority Treaties) had been insufficient for the concrete protection of minorities, and he argued that in its place should come an alternative which benefitted the minorities: The abandonment of the present system of protection of minorities, without an alternative and compensating international arrangement, would mean a disservice to the minorities, to the cause of international protection of human rights and international peace and progress.19 His proposal also contains an article about the educational, cultural and religious rights of minorities (Article 12). Instruments of Enforcement Part Three of Lauterpacht’s proposal contains a description of the suggested enforcement mechanisms. In his comments to this part, Lauterpacht argues that enforcement mechanisms must be in place to uphold international peace.20 Lauterpacht is aware of the practical difficulties in ensuring such enforcement in practice. Learning from the unsuccessful experiences linked to the Minority Treaties under the League of Nations, he admits that in addition there is a vast difference in scope between the protection of minorities and the new regime of international human rights: Whereas the Minority Treaties were concerned with only one aspect of a limited number of persons, the International Bill of Rights:

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Lauterpacht, 1945, p. 122. Lauterpacht, 1945, p. 151-154. See also Article 12: “In States inhabited by a substantial number of persons of a race, language or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic or religious minorities shall have the right to establish and maintain, out of an equitable proportion of the available public funds, their schools and cultural and religious institutions and to use their own language before the courts and other authorities and organs of the State.” Lauterpacht, 1945, p. 169.

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… is concerned with the totality of human rights in relation to the entire human race. This means that, assuming it is to become an effective part of international legal order, the machinery for its enforcement must be correspondingly more comprehensive and intricate.21 In his discussion of various possibilities, he weighs pros and cons of different instruments, and considers solutions which, in his view, are practically realizable and solutions which are “unsound and impracticable”22 or for which the time is not “ripe”.23 He suggests a combination of national and international instruments of supervision and enforcement: The State must be the normal agency for implementing the Bill of Rights, which must, for that purpose, contain provisions enabling and obliging the States to act in that capacity. The Bill of Rights must, with regard to the personal rights of freedom formulated in Part I of the present draft, be made part of their municipal law and partake of the character of a constitution enactment. States must confer upon their courts the power and impose upon them the duty to pass judgment or to express an opinion upon the conformity of the acts of the legislative, judicial, and administrative authorities with the clauses of the Bill of Rights. The international guarantee of the Bill of Rights must be of a general character. This means that it must be concerned not only with persistent and grave violation of its clauses but also with the normal supervision of its observance. It follows that that there must exist a permanent international authority, neither judicial nor political in nature, charged with at task of general supervision, of investigation of complaints, and of initiation by the political international authority in case of disregard of the safeguards of the Bill of Rights on a scale warranting international action for their enforcement. There must reside in the political international authority the ultimate and effective power to enforce the observance of the Bill of Rights.24

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Lauterpacht, 1945, p. 173. Lauterpacht, 1945, p. 174. Lauterpacht, 1945, p. 176. To give an example, he was not in favour of an international court, one of the reasons being that there would be innumerous cases, another that the domestic systems vary too much to make a World Court efficient. Lauterpacht, 1945, p. 177.

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Lauterpacht’s proposal is based, then, on what in his view is practical and realistic, namely a set of dual enforcement mechanisms, consisting of both domestic and international instruments.

1945. Reception of the Lauterpacht Proposal At the time of publication, the Lauterpacht proposal was a remarkably forward-looking, in part revolutionary, proposal coming from an expert of international law, and his book was soon reviewed in major legal periodicals on both sides of the Atlantic, not least in the United States, where the book was published. The main substance of the proposal was met with appraisal, although not without critical points. To take a few examples, Philip Jessup, at the time professor of international law at Columbia Law School, in a review appearing in the American Journal of International Law in 1945, stated that: Professor Lauterpacht’s great contribution lies in the fact that he has brought the idea [of an international bill of rights] into the focus and has elaborated his plan… with a quiet and moderate assurance which, in the light of developments, makes the book particularly persuasive.25 He criticized, however, Lauterpacht’s omission of any attempt to redress the legal inferiority of women and the inequality of aliens: it is perhaps the greatest weakness in the book, being weak by the very effort to lean strongly on the rock of practicality… the author’s own yielding on certain basic problems in the field of human rights inevitably subjects to attack by the same arguments, the assertion of those rights upon which he thinks there should be no yielding despite political opposition.26 Herbert Brigg, professor at Cornell Law School, was another American academic predominantly positive towards the proposal in his review of the book in the Cornell Law Review. Amongst his critical points was Lauterpacht’s dealing with natural law: “No concepts of natural rights are necessary to justify

25 26

Quoted from Lauterpacht, 2012, p. 255. Quoted from Lauterpacht, 2012, p. 255.

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the proposals of the author… the rights [in question] will stand or fall on their merits – or, perhaps, their feasibility”.27 In the following years, the Lauterpacht Bill continued to attract attention and win wide support by the International Law Association, ILA (see below).

1946. Making History: Humphrey’s First Draft of the UDHR Two years after the publication of Hersch Lauterpacht’s proposal for an International Bill of Human Rights, John Humphrey was given the momentous task to make a first draft of what was to become the Universal Declaration of Human Rights. “I was no Thomas Jefferson”, he was later to write,28 as a way of explaining why he did not start formulating the Universal Declaration from scratch but was inspired by a considerable amount of documents, collected for him by the UN Secretariat. The documents included a large number of national constitutions and several proposals for an International Bill of Human Rights. Hersch Lauterpacht’s proposal was among the documents at his disposal,29 and he was inspired by it (although more so by the text prepared by the American Law Institute), both quoting it in his report to the Commission and using it with “two minor changes” in his Articles on nationality and aliens in his own original draft of a Universal Declaration.30 Humphrey built his draft of an international bill upon the following three principles: After cataloging and defining the various rights and freedoms, I went on to mention three principles, the recognition of which is essential in any effective system for the international protection of human rights. The first was that the right of individual petition (which I had included in Article 29 of my draft) included the right to petition the United Nations. The second was the duty of all member states to respect and protect the rights enunciated in the declaration, and the third that its provisions

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Quoted from Lauterpacht, 2012, p. 256. John Peters Humphrey, “The memoirs of John P. Humphrey, the first director of the United Nations Division of Human Rights”, Human Rights Quarterly, Vol. 5, No. 4, November 1983, pp. 387-439 (p. 406). Humphrey, 1983, p. 406. John Peters Humphrey, Human Rights and the United Nations: A Great Adventure. Transnational Publishers, New York 1984, p. 32.

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were to be deemed fundamental principles of international law and of national law of each member state.31 There was, then, a substantial common ground between Humphrey’s original draft and Lauterpacht’s proposal, as far as the binding nature of the proposals and the principles on enforcement mechanisms and individual petition were concerned. However, as Humphrey himself readily notes: “None of these principles were retained in the Universal Declaration, although some of them were put into the Covenants.”32 In the political organs of the UN there was no agreed willingness to adopt such far-reaching and radical principles. Instead the work began which led to a much less ambitious and non-binding Universal Declaration, and Humphrey, dedicated to his mandate to carry out the instructions of the Human Rights Commission, swiftly discarded his own much more comprehensive draft. A substantial disparity existed between Lauterpacht’s proposal and the drafts of the Universal Declaration for Human Rights, which went into circulation in the course of 1947 and 1948, and which were much less comprehensive than the Lauterpacht proposal and also Humphrey’s original draft. And in contrast to Humphrey, Lauterpacht unrelentingly held on to the main principles suggested in his proposal of 1945, namely the binding nature of a Bill of Rights as well as it enforceability.

1947. The Drama Unfolds: Calling in the International Law Association At the time of its creation, the draft of the Universal Declaration of Human Rights was met with varying degrees of praise and disapproval. Broadly speaking, there were two groups of opponents. The first group was sceptical towards or openly opposed to the idea of universal human rights. The second group was in favour of universal human rights, but not in the form of a Universal Declaration of Human Rights. Hersch Lauterpacht was amongst the most outspoken experts from the second group. He was to air his misgivings about the evolving Universal Declaration – its content as well as the process – mostly amongst his peers of international lawyers, but sometimes to a broader audience, as in the following text published in the English newspaper 31 32

Humphrey, 1983, pp. 407-8. Humphrey, 1983, p. 408.

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The Times. Thus in a Letter to the Editor of July 26 1947 Lauterpacht urged the process of creating the Universal Declaration to slow down, thereby avoiding undue haste and leaving time for contemplation: I venture, Sir, to express the hope that careful consideration will be given to the matter before the organs of the United Nations commit themselves either to the substance of these proposals or to the date of their execution. It is doubtful whether an adequate Bill of Rights can be produced within the time contemplated. For this is not only a most difficult subject of codification of existing law. It is to a large extent a piece of international legislation. Unless the Bill is to be a mere statement of generalities or unless its clauses are to be reduced to the lowest common denominator, it must imply some changes voluntarily consented to in the law and practices of States.33 One of Lauterpacht’s main objections, then, was that he saw the whole process as too hasty. He thus calls for more patience and more consideration. Because of the vast complexity of the issues involved in the formation of the Universal Declaration and because of the times marked by uncertainty and turmoil: “ample time should be left for further discussion and study”.34 For instance, time and scrutiny were needed with regard to discussing whether it is feasible to incorporate economic and social rights in an enforceable Bill of Rights, and the Universal Bill “might be greater in historic achievement if it materialises in 1950 rather than in 1948”.35 Above all, Lauterpacht was of the firm belief that the issues needed substantial scholarly scrutiny: experts of international law and human rights should be involved: Bodies other than Governments should be given the opportunity of forming and expressing their views. The Bill should be the product of the best efforts of statesmen and scholars in the fields of jurisprudence and of the political and social sciences.36 It was one thing that Lauterpacht publicly criticized the Universal Declaration of Human Rights and the process around it. What was more, he had on several of his substantial points the support of the International Law Asso33 34 35 36

Quoted from Lauterpacht, 2012, p. 260. Quoted from Lauterpacht, 2012, p. 260. Quoted from Lauterpacht, 2012, p. 261. Quoted from Lauterpacht, 2012, p. 261.

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ciation, ILA. The objectives of the Association, founded in 1873, “include the study, elucidation and advancement of International Law, public and private, the making of proposals for the solution of conflicts of laws and the furthering of International understanding and goodwill” (Constitution, as amended in 1936, Article III).37 The ILA was situated in London and had branches in a large number of European countries (from Bulgaria to Sweden) and one regional American branch. A large number of individuals and organisations were members. The members came predominately from Europe and the United States, but also in quite a large number from Latin America and some from outside the Atlantic axis.38 The Association dealt with topical issues of international law and made resolutions. Lauterpacht’s Letter to Editor of The Times of 26 July 1947 was supported by a Letter to the Editor of 29 July signed by Lord Porter on behalf of the International Law Association; this letter furthermore “urged the appointment of a full-time Human Rights Council to investigate petitions, make enquiries on the spot, publish the results of its investigations and, if violations were found, to make recommendations on the spot”.39 In September 1947, the International Law Association held its 42nd conference. One of the topics dealt with at the conference was human rights, and here Lauterpacht played a dominant part. The draft for a Universal Declaration had not been publicised at the time of the conference. Instead, Lauterpacht’s proposal was circulated to the ILA members with the purpose of serving as a basis for the discussion at the conference.40 Lauterpacht himself opened the discussion by proposing a three-tiered debate on human rights: “1. The legal effect of the Charter of the United Nations in the matters of domestic jurisdiction; 2. The function and the powers of the Commission on Human Rights as an instrument for implementing these objects of the Charter; 3. The question of the enforcement of the proposed International Bill of Human Rights”.41 At the concluding session Lauterpacht proposed a Resolution, which was unanimously adopted by the Association. The Resolution resolves, amongst 37

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39 40 41

See The International Law Association, Report of the Forty-Third Conference held at Brussels in the Brussels University, August 29th to September 4th, 1948. Crampton & Sons, Cambridge, 1950, p. XXI. For the actual members in 1947, see The International Law Association, Report on the Forty-Second Conference held at Prague in the Charles University, September 1st to September 5th, 1947. Cambridge, England, 1948. Lauterpacht, 2012, p. 261. The International Law Association, 1948, p. 58. The International Law Association, 1948, p. 21.

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others issues, to set up committees for studying and reporting on, for instance, the legal effects of the UN Charter and the contents “in all their aspects and the enforcement of an International Bill of the Rights of Man”. Moreover, it resolved … to transmit to the Secretary-General of the United Nations the considered view of the Association that the submission to the General AssemblY of an International Bill of the Rights of Man should be preceded by adequate study on the part both of the organs of the United Nations and non-Governmental bodies, but that such submission to the General Assembly should not be delayed beyond the year 1950.42 At the ILA conference held in August 1948, the Association sustained its support of the Lauterpacht position on the Universal Declaration as well as his own proposal of an International Bill of Rights.43 The criticism of the ILA and Lauterpacht formed an academic voice of opposition, which joined the political debates. The academic opposition never made it into the very centre of decision-making in the United Nations. This does not mean, however, that it was not heard or listened to. In fact, considering that Lauterpacht was one of the most eminent international lawyers of the 20th century and a towering figure on the scene of international law, and considering that he had the ear and – on central issues – the support of the International Law Association, it is hardly surprising that his profound disapproval of the Universal Declaration was viewed with alarm by the Human Rights Director. Indeed, John Humphrey was greatly troubled by Lauterpacht’s open criticism. Examples of this are found in his diaries from the time, for instance when referring to the Conference of the International Law Association, which took place in August 1948, where again Lauterpacht delivered a speech dismissing the Declaration. Humphrey noted in his diary (31 August 1948): Lauterpacht delivered a brilliant but devastating talk to the International Law Association on human rights. But he fails to appreciate the political difficulties in our work and hence does not understand that the Commission has already achieved important results. I am afraid that in spite of his good intentions he is colouring the thinking of many people

42 43

The International Law Association, 1948, pp. VII-VIII. See here The International Law Association, pp. VIII-XI and 29-138.

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against us. I was invited to participate in the debate this afternoon but in view of the turn the discussion took decided to abstain.44 In fact, as Humphrey was later to write, he was “so annoyed” by the position of the ILA that he withdrew his membership from the Association.45 There were good reasons for Humphrey to be troubled and annoyed by his academic peers. First of all, it was difficult to dispute one of their central points, namely the shortage of experts of international law and human rights among the members of the Human Rights Commission and the delegates, in whose hands the formation of the declaration rested.46 Secondly, many outside of the UN would no doubt have agreed with Lauterpacht’s dismissal of the Universal Declaration as a disappointing result of the States’ endeavour to create a world resting on respect for human rights, as expressed by Lauterpacht in 1948: … the Universal Declaration of Human Rights … is in the nature of a pronouncement whose moral authority is controversial and which does not claim and does not possess binding force as an instrument of international law. It must be a matter of speculation whether the Declaration will be followed by the acceptance of binding international obligations. In the meantime it seems desirable that full use should be made of the legal provisions of the Charter in the matter of human rights and fundamental freedoms.47 The excellent argumentation of Lauterpacht was “dangerous” because coming from such an expert it fell on fertile soil, finding partial or whole support in many corners. Thus both outside and inside the UN, the first draft of the Universal Declaration was met with substantive and wide-ranging criticism. To take the state actors as an example, several countries called for a binding convention, and Denmark, for instance, pushed for the protection of minority rights, including educational rights of national minorities, and a right of petition for individuals and groups.48 44 45 46 47 48

Humphrey, 1994, p. 36 Humphrey, 1983, p. 436. Bernstoff, 2009, p. 905. Lauterpacht, 1948, p. 19 n. 1. Eva Maria Lassen, “Denmark: A document of ideological importance”, in Vinodh Jaichand and Markku Suksi (eds.), 60 Years of the Universal Declaration of Human Rights in Europe. Intersentia, Morsel 2009, pp. 43-58, (p. 46).

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Humphrey and Lauterpacht were to maintain their unyielding ways, as expressed in the diary of Humphrey, referring to a dinner he and Lauterpacht had just two days before the adoption of the Universal Declaration: He [Lauterpacht] is more pessimistic than ever about the work of the United Nations on Human Rights, but out of friendliness for me he tried to be pleasant about it… I respect Lauterpacht’s sincerity, but I think he is completely unreal in his thinking and I sincerely hope that history will prove he is wrong. He has no idea whatsoever of the political difficulties involved – nor does he want to know about them.49 As this quotation indicates, they kept a friendly and respectful rapport throughout their big dispute, a professional friendliness they continued to foster.

1948-1950. After the Adoption of the Declaration: The Immediate Aftermath After the adoption of the Universal Declaration of Human Rights John Humphrey continued to be concerned about Lauterpacht’s opposition because of the authority with which he argued and the support he continued to foster (notably from the ILA). In his diary of September 18, 1949 Humphrey writes about Lauterpacht’s article in the British Yearbook of International Law: I read the article this morning. Nothing could be more negative or more unsympathetic to our work. It is destructive criticism of the worst kind and, coming from such an authority, will undoubtedly do us much harm.50 What troubled Humphrey was not just that Lauterpacht put into question the moral potential of the Declaration, but also that Humphrey found it difficult to contest Lauterpacht’s criticism of the non-binding nature of the Declaration: The argument in favour of the thesis that the Declaration is not legally binding is probably too strong to be refuted, although I do not think that 49 50

Humphrey, 1994, p. 90. Humphrey, 1994, p. 216.

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the last word has been said on the subject. That is not to say, however, that the Declaration has not legal relevancy; and this is what Lauterpacht fails to appreciate. My own belief is that, while the Declaration is not now equally binding on States, it could become binding; and our job is to encourage that development. It is a political document of the very highest importance and represents a preliminary or perhaps even first state in the law-making process. If it is not yet legislative it at least manifests a legal conviction.51 Later in the same month he reflected further on Lauterpacht’s criticism, and interestingly focused on the significance of the Declaration as a tool to appeal to public opinion: I have also been thinking about Lauterpacht’s criticism of the Universal Declaration of Human Rights. He forgets that an organization like the United Nations which is based on world public opinion and where an appeal to public opinion is more important than a juridical sanction, the Declaration provides a standard by which the conduct of governments can be measured; and this even although the Declaration may not be legally binding on governments. Indeed, this political or moral function of the Declaration would probably be its most important function even although it were also possible to invoke it before an international tribunal.52 In his diary entry January 26, 1950, Humphrey notes “I had a very pleasant letter from Lauterpacht in which he argues that we are not as far apart on the Declaration as would appear”.53 But later in the year Lauterpacht published the book, International Law and Human Rights. This 442 page long work included his own and slightly revised proposal of 1945 and also a profound criticism of the Universal Declaration. From his diaries it is evident that Humphrey read Lauterpacht’s new book with the greatest interest.54

51 52 53

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Humphrey, 1994, pp. 216-17. September 27, 1949. Humphrey, 1994, p. 219. John Peters Humphrey, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, 4 volumes. Edited by A.J. Hobbins. Fontanus Monograph Series 4, 9, 12 and 13, McGill-Queen’s University Press, Montreal 1994-2001. (Vol II, 1996, p. 13 ). Humphrey, 1996, p. 116; p. 118; p. 122.

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Lauterpacht’s new book also contained a support of the establishment of the European Convention and Court of Human Rights, which had the characteristics Lauterpacht deemed essential: the Convention was binding upon the States and enforceable. This is symbolic of the fact that from then on Humphrey and Lauterpacht went their different ways. Lauterpacht went on to concentrate his efforts on other matters, notably the European Convention on Human Rights, which were to contain elements advocated by Lauterpacht (most importantly, making the Convention binding and containing means of enforcement) and was appointed judge at the International Court of Justice in 1955, where he served until his death in 1960. Humphrey, for his part, continued in the United Nations until 1966, working on the development of international human rights instruments. Following his retirement from the UN, he returned to McGilll, where he taught international law at the same time as continuing to serve the UN, for instance as a member of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities.

1978. Writing about History: The Victor’s Memory Humphrey was in the centre of history-making in 1948. Thirty-five years on, he wrote about this experience in his book, Human Rights and the United Nations: A Great Adventure. Looking back on the creation of the Universal Declaration, he offered himself the opportunity to write a history that proved Lauterpacht wrong. His overriding argument was that the Universal Declaration was now part of customary law and that the speediness of the creation of the Declaration had been justified: The best strategy [was]… to adopt it [the Declaration] as quickly as possible. The logic of my position took me even further; for I thought that it might be better if the international community were given some time to digest the Declaration before attempting to adopt a convention… even in 1948, my instinct told me that eventually it would become part of international law whatever the intentions of its authors, or the form in which it was adopted. … Looking back after many years, I can find no reason for thinking that I was wrong in 1948. The UDHR is now part of the customary law of nations and therefore binding on all states. I do not remember anyone in 1948 who shared my views.55

55

Humphrey, 1983, p. 424.

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He then goes on to remember the time of the adoption of the Declaration: “Apart from a few discordant notes… the adoption of the Declaration was hailed, both in and outside the United Nations, as a great achievement. And a great achievement it was.”56 As we have seen, this assessment was a beautification of history. Lauterpacht was very far from alone in his criticism at the time, although Humphrey points him out as one of “the very few dissenting voices”.57 The fact is that the Declaration by many was not claimed as a great achievement, but at best rather more modestly, namely as a hopeful first step towards a better world. In other words, Humphrey created a harmony, which had not been there at the time. That Humphrey continued to be troubled by Lauterpacht’s dismissal of the Universal Declaration, even after Lauterpacht’s death in 1960, is also evident in Human Rights and the United Nations: A Great Adventure. Although he held his deceased opponent in high esteem, he put their differences down mainly to Lauterpacht’s misled idealism, and the consequent lack of pragmatism in this otherwise levelheaded international lawyer. Thus Humphrey wrote about the old master of international law: … he was an impatient man who wanted to move faster than political realities would permit. He could be satisfied with nothing less than an immediately binding commitment to respect human rights. But while I could understand and sympathize with his attitude, the stand taken by the International Law Association, of which he was one of the most distinguished members, so annoyed me that I allowed my membership to drop.58 Remarkably, Humphrey’s desire to win the argument led him to declare that Lauterpacht would have approved of the Universal Declaration had he still be alive: Had this great lawyer, who was also a dedicated if impatient partisan of human rights, lived longer, he would have recognized not only the great moral authority of the Declaration but, it is submitted, its now binding character as part of the law of nations.59

56 57 58 59

Humphrey, 1983, p. 435. Humphrey, 1983, p. 435. Humphrey, 1983, p. 436. Humphrey, 1984, p. 28.

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Thus Humphrey explained Lauterpacht’s position by means of referring to his impatience – a characteristic which, curiously, is exactly what Lauterpacht was accusing the architects of the Universal Declaration of. In this way, Humphrey after Lauterpacht’s death created a particular make-up of Lauterpacht’s personality. Moreover, Humphrey, who had despaired over Lauterpacht’s critical stand, argued after the death of his most ardent and qualified opponent that he would have gained his approval in the end. This was Humphrey’s version of the winner’s case. In the later reception of the Universal Declaration of Human Rights, the possibly most interesting decade in relation to Hersch Lauterpacht’s criticism of the Declaration is the 1990s, characterised by a widespread praise of the Universal Declaration and its achievements. Among those enthusiastic about the Universal Declaration we rediscover the legacy of Lauterpacht as formed by John Humphrey. To give an example, Ann Glendon, who has an overwhelmingly positive assessment of the Universal Declaration mentions Lauterpacht only once, and here counting him among “men impatient for action and progress”.60

Conclusion and Contemporary Perspectives With the clash between Hersch Lauterpacht and John Humphrey as the focal point of this chapter, I have explored the debates that took place within academic circles of international lawyers and the role of these debates in the process of creating the Universal Declaration of Human Rights in 1948. John Humphrey handled, I have argued, his disagreement with Lauterpacht over the Universal Declaration by constructing a particular image of Lauterpacht and painting a picture of less opposition to the Universal Declaration than actually was the case – as demonstrated by the International Law Association, members of which included international lawyers and academics from both sides of the Atlantic as well as from other parts of the world, and which offered a strong support of Lauterpacht in his position on the Universal Declaration. Fasting forward to the 21st century, we find that from time to time the same kind of language as used by Humphrey to explain his differences with Lauterpacht over the Universal Declaration, including psychological reasons such as impatience, is being used about those human rights experts who are pressing 60

Mary Ann Glendon, A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights. Random House, New York 2001, p. 235.

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for progress and suggesting initiatives to keep states and other human rights actors increasingly accountable for upholding human rights. To give a modern example, a group of human rights experts has suggested the creation of a World Court of Human Rights. The proposal was published in 2011: A World Court of Human Rights: Consolidated Draft Statute and Commentary.61 As for the reception of this proposal, the scholars behind the initiative were met, at least in the initial stages of drafting the proposal, by arguments similar to those formulated by Humphrey in his reaction to Lauterpacht. In the words of one of the authors, Manfred Nowak: … It is this spirit of keeping up the good old divide between Eastern and Western Europe which reminds us that a World Court of Human Rights is nothing but utopia. At least this is the usual response I receive even from well-intended Western diplomats when I raise the need for a World Court of Human Rights. This seems to be a highly interesting idea, I am told, but a little too revolutionary and utopian for the United Nations. As a human rights “expert”, I should be experienced enough to understand that the time is simply not yet ripe for such a big step. In nice diplomatic words, I am told that we should not alienate the Russians, the Americans, Africans and, above all, the Asians with such untimely and unrealistic ideas.62 But even if human rights scholars can still be met with this somewhat patronising discourse today, the scene has radically changed from 1948. Thus there are many more human rights experts and academics directly involved in the UN sphere – as the authors of the proposal of a World Court themselves are examples of63 – being both academics and serving in UN or other international human rights bodies. The international human rights scene has changed be-

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Julia Kozma, Manfred Nowak and Martin Scheinin, A World Court of Human Rights – Consolidated Statute and Commentary. BIM Studienreihe Bd. 22, Wien/Graz 2011. Manfred Nowak, “Eight Reasons why we need a World Court of Human Rights”, in Jonas Grimheden, Gudmundur Alfredsson and Bertie Ramcharan (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd edition, Raoul Wallenberg Institute (Lund), Martinus Nijhoff Publishers, Leiden, Boston, 2009, pp. 697-706 (p. 700). Professor Manfred Nowak has served as, for instance, UN Special Rapporteur on Torture (2004-10), Professor Martin Scheinin was the first UN Special Rapporteur on Human Rights and Counter-terrorism (2005-11), whereas Julia Kozma is serving as the Austrian member of the European Committee for the Prevention of Torture until 2017.

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cause academics now blend with political actors in the UN and have firmly entered the centre of the UN, for instance through the Special Treaty Bodies.64 As members of human rights bodies in the UN – or the expanding regional human rights systems – these academics are to a large extent floating above regional, including transatlantic, divides. At the same time we see another development, linked to the fact that human rights have developed into an expansive and multi-disciplinary research area. As such, the multitude of scholars, on the one hand, form a global academic community. On the other hand, human rights academics often work on specific human rights topics and from specific perspectives, which reflect the role played by human rights in their country or region. As such, political and societal divides are part of the academic scene, as illustrated in the different approaches to human rights as a scholarly discipline in the United States and Europe respectively (as demonstrated in Helle Porsdam’s chapter in this book).

Literature Bernstorff, Jochen von, “The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law”, The European Journal of International Law (EJIL), Vol. 19, No. 5, 2008, pp. 903-924. Capps, Patrick, “Lauterpacht’s method”, The British Yearbook of International Law, 2012, Vol. 82 No. 1, pp. 248–280. Glendon, Mary Ann, A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York, 2001. Humphrey, John Peters, Human Rights and the United Nations: A Great Adventure. Transnational Publishers, New York 1984. Humphrey, John Peters, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, 4 volumes. Edited by A.J. Hobbins. Fontanus Monograph Series 4, 9, 12 and 13, McGill-Queen’s University Libraries, Montreal 1994-2001. Humphrey, John Peters, “The memoirs of John P. Humphrey, the first director of the United Nations Division of Human Rights”, Human Rights Quarterly, Vol. 5, No. 4, November 1983, pp. 387-439.

64

See above. Another example of an academic serving as UN Special Rapporteur is Professor Heiner Bielefeldt, appointed Special Rapporteur on Freedom of Religion and Beliefs in 2010.

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Koskenniemi, Martti, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870 – 1960. Hersch Lauterpacht Memorial Lectures, Cambridge University Press, Cambridge, 2002. Lassen, Eva Maria, “Denmark: A document of ideological importance”, in Vinodh Jaichand and Markku Suksi (eds.), 60 Years of the Universal Declaration of Human Rights in Europe. Intersentia, Morsel, 2009. Lauterpacht, Elihu, The Life of Hersch Lauterpacht. Cambridge University Press, Cambridge, 2012. Lauterpacht, Hersch, “International Law after the Second World War”, reprinted in International Law. Collected Papers edited by Eli Lauterpaucht, Vol. 2, Cambridge University Press, Cambridge, 1950/1970a, pp. 159-70. Lauterpacht, Hersch, “The Charter of the United Nations and Human Rights and Fundamental Freedoms”, in Österr. Zeitschrift für Öffentliches Recht, Sonderabdruck aus Band III, 1948, Heft 1, pp. 19-29. Lauterpacht, Hersch, “The Grotian Tradition in International Law”, published in 1946, reprinted in International Law. Collected Papers edited by Eli Lauterpaucht, Vol. 2, Cambridge University Press, Cambridge, 1970, pp. 307-65. Lauterpacht, Hersch, An International Bill of the Rights of Man, Columbia University Press, New York, 1945. Lauterpacht, Hersch, International Law and Human Rights, Stevens and Sons Limited, London 1950. Lauterpacht, Hersch, International Law, Being the Collected Papers of Hersch Lauterpacht; systematically arranged and edited by E. Lauterpacht, 4 volumes, Cambridge University Press, Cambridge, 1970-1974. Lauterpacht, Hersch, International Law – the General Part, preparation of the ninth edition of Oppenheim’s treatise on International Law, printed in International Law. Collected Papers edited by Eli Lauterpaucht, Vol. 1, Cambridge: Cambridge University Press, Cambridge, 1950/1970. Lauterpacht, Hersch, “The Persecution of Jews in Germany”, 1933, reprinted in International Law: Being the Collected Papers of Hersch Lauterpacht, (edited by Elihu Lauterpacht) Volume 5 – Disputes, War and Neutrality, Parts IX-XIV, pp. 728-737. Lauterpacht, Hersch, (1950/1970b) “State Sovereignty and Human Rights”, lecture at the Hebrew University of Jerusalem, 8 May 1950, reprinted in International Law. Collected Papers edited by Eli Lauterpaucht, Vol. 3, Cambridge University Press, Cambridge, 1950/1970b, pp. 416-430. Nowak, Manfred, “Eight Reasons why we need a World Court of Human Rights”, in Jonas Grimheden, Gudmundur Alfredsson and Bertie Ramcharan (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd edition, Raoul Wallenberg Institute (Lund), Martinus Nijhoff Publishers, Leiden, Boston, 2009, pp. 697-706.

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Kozma, Julia, Nowak, Manfred, and Scheinin, Martin A World Court of Human Rights – Consolidated Statute and Commentary. BIM Studienreihe Bd. 22, Wien/Graz, 2011. Simpson, A.W. Brian, Human Rights and the End of Empire: Britain and the Genesis of the European Convention, Oxford University Press, Oxford 2001. The International Law Association, Report on the Forty-Second Conference held at Prague in the Charles University, September 1st to September 5th, 1947. Cambridge, England, 1948. The International Law Association, Report of the Forty-Third Conference held at Brussels in the Brussels University, August 29th to September 4th, 1948. Crampton & Sons, Cambridge, 1950. Vrdoljak, Ana Filipa, “Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law”, The European Journal of International Law, 2009, Vol. 20 No. 4, pp. 1163–1194.

chapter 2

Race, Social Struggles and “Human” Rights: Contributions from the Global South1 Julia Suárez-Krabbe

Introduction Contemporary social and ethnic movements in Latin America base their theorizations and political projects upon the critique of colonialism/coloniality, and thereby of race and racism. These critiques are influential to current social and human sciences from the region2 because they provide new insights into both localised problems, as well as global concerns about inequality and power relations. Among other things, the contributions of these critiques and political projects, whose main architects are to be found among indigenous and afro-descendent social and ethnic movements in Latin America, point to the problem of race and racism that lies at the core of human rights think-

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This chapter presents some of the findings of the author’s PhD research for the dissertation At the Pace of Cassiopeia. Being, Nonbeing, Human Rights and Development (SuárezKrabbe, 2011). The research was funded by the Department of Culture and Identity at Roskilde University and the Center for the Study of the Americas at Copenhagen Business School in Denmark. An earlier version of this chapter has been published in the Journal of Critical Globalization Studies. See, for instance, Lewis Gordon, Disciplinary Decadence. Living Thought in Trying Times. Paradigm, Boulder and London 2006; Grosfoguel, Ramón and Santiago CastroGómez (eds.), Educación superior, interculturalidad y descolonización. PIEB, La Paz 2007; Edgardo Lander (ed.), La colonialidad del saber: eurocentrismo y ciencias sociales. Perspectivas latinoamericanas. CLACSO, Buenos Aires 2000; Walter D. Mignolo, Local Histories/Global Designs. Coloniality, Subaltern Knowledges, and Border Thinking. Princeton University Press, Princeton 2000; Walter D. Mignolo, “Citizenship, Knowledge and the Limits of Humanity,” American Literary History, Vol. 18(2), 2006, p. 312-331, and Rodolfo Stavehagen, “Repensar América Latina desde la subalternidad: el desafio de Abya Alya,” in Francisco Rojas Aravena and Andrea Á lvarez-Marín (eds.), América Latina y el Caribe: Globalización y conocimiento. Repensar las Ciencias Sociale. FLACSO – UNESCO, Montevideo 2011.

© koninklijke brill nv, leiden, ���� | doi ��.����/���������� ���_���

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ing. This chapter presents some theoretical and historical foundations for this critique. To understand the claim that human rights are intrinsically racist constructs, it is necessary to shift the geography of reason and explore the main elements of indigenous and afro-descendent social and ethnic movement’s readings of human rights. In other words, we need to approach human rights in a way that takes as valid the frames of analysis employed by these movements. In order to shift the geography of reason; It is important […] to distinguish the epistemic location from the social location. The fact that one is socially located in the oppressed side of power relations does not automatically mean that he/she is epistemically thinking from a subaltern epistemic location. […] Subaltern epistemic perspectives are knowledge coming from below that produces a critical perspective of hegemonic knowledge in the power relations involved.3 As we will see, shifting the geography of reason implies the teleological suspension of western thought,4 and hence a fundamental break with the commonly used frames in most studies of human rights, and a shift both of spatial and temporal coordinates employed in their analysis and conceptualisations. Because human rights obtain their name as Human Rights from the Universal Declaration after the Second World War, they are often conceptualised as legal attempts with universal validity and application, which emerged after the atrocities committed by the Nazis, and which aim to protect the life and well-being of individual citizens. Such conceptualisations take the conjunction of the word Human with the word Rights as the central point of departure, and use the emergence of the Universal Declaration of Human Rights as the paradigmatic experience from which the overcoming of racism, conceptualised on the basis of the Holocaust,5 is imagined. In this sense, the idea that racism has been overcome, and that there is no such thing as colonial racism undergirding both the racism practiced during World War Two

3

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Ramón Grosfoguel, “A Decolonial Approach to Political-Economy: Transmodernity, Border Thinking and Global Coloniality,” Kult, Vol. 6, Special Issue, 2009, p. 14. Emphasis retained. Lewis Gordon, “African-American Philosophy, Race, and the Geography of Reason,” in Lewis R. Gordon and Jane Anna Gordon (eds.), Not Only the Master’s Tools: AfricanAmerican Studies in Theory and Practice. Paradigm, Boulder and London 2006, p. 35. See Hesse, Barnor (2004): Im/Plausible Deniability. Racism’s Conceptual Double Bind. Social Identities 10(1), pp 11-29.

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and contemporary racism in Europe is closely connected to the imaginary universal human rights. As Barnor Hesse has stressed, the emphasis on the Holocaust providing the paradigmatic experience [upon which racism has been conceptualised] has underwritten a liberal critique of the political extremism of fascist racism, obliging the foreclosure of a radical critique of the social conventions of colonial racism. It has rendered inviolable the vaunted western ideal of a universal liberal political culture [including Human Rights], only aberrantly fascist and benignly colonial.6 Many scholars investigating racism through a teleological suspension of western thought have shown how the racist governmentalities practiced by the Nazi regime were a variation of the practices of hierarchization of humans, which emerged during the early years of the “discovery” of America, and which were aimed to govern and control.7 Coherent with these approaches, the point of departure of this chapter is that, in order to understand the conjunction of human with rights, it is necessary to look upon how the idea of the human emerged in close relationship with the question of rights, and how these notions were embedded in racist practices. Hence, the shift in the spatial coordinates in the frames of analysis employed in this chapter move from Europe to the Americas, and the temporal coordinates move from the mid-twentieth century to the 15th century. By this, the spatial and temporal reallocation is intrinsically transatlantic. What is more, it is concerned with a pivotal period without which any transatlantic relation from the 15th century onwards cannot be fully understood. This 6 7

Hesse, 2004, p. 15. See, for instance Aimé Césaire, Discurso sobre el colonialismo. Akal, Madrid 2006; Grosfoguel, A Decolonial Approach, 2009; Ramón Grosfoguel, “Human Rights and Anti-Semitism after Gaza,” Human Architecture, Vol. 6(2), 2009, p. 89-102; Hesse, 2004,; Aníbal Quijano, “‘Raza’, ‘etnia’, y ‘nación’: cuestiones abiertas,” in R. Forgues (ed.), José Carlos Mariátegui y Europa: la otra cara del descubrimiento. Amauta, Lima 1992; Aníbal Quijano, “Coloniality of Power, Ethnocentrism, and Latin America,” Nepantla, views from the South, Vol. 1(3), 2000, p. 533-580./ Quijano, Aníbal, “Colonialidad del poder, eurocentrismo y América Latina” in E. Lander (ed.), La colonialidad del saber: eurocentrismo y ciencias sociales. Perspectivas latinoamericanas. CLACSO, Buenos Aires 2000; Aníbal Quijano, “Colonialidad del Poder y Clasificación Social,” Journal of world-systems research, Vol. 4(2), 2000, p. 342-386, and Wynter, Sylvia, “Unsettling the Coloniality of Being/Power/Truth/Freedom Towards the Human, After Man, Its Overrepresentation – An Argument,” New Centennial Review, Vol. 3(3), 2007, p. 257-337.

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alteration provides the frames for a novel and more accurate analysis of the history of human rights, an other side of the story necessary to understand, in a comprehensive manner, contemporary human rights. This other side of the story additionally gives us the basic lines to understand the different attempts at transcending or changing human rights, which are being worked on in the Latin American context.8 While the shift in the geography of reason employed in this chapter means that our scholarly and legal readings of human rights must be revised almost completely, this chapter presents a few central elements to this revision. More specifically, then, it presents one central antecedent to contemporary human rights thinking, and a derivative one. The first is, as implied previously, concerned with the construction of the intrinsically hierarchical idea of what is human – that is the idea of race – during the conquest and colonization of the Americas. The second derivative aspect of analysis retains the transatlantic perspective and briefly elucidates the ways in which the construction of race not only crystallised, but continued playing a pivotal role in the context of the social struggles of the racialized subjects in Latin America during independence and republic-building. These struggles achieved that the idea

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For examples of the diverse ways in which different attempts at transcending or changing human rights, from the Latin American context, see CDP (Comunidad de paz de San José de Apartadó), Un proyecto de caminar comunitario. Downloaded from: www. cdpsanjose.org (accessed December 2004); CONAIE et. Al, Somos hijos del sol y de la tierra. Derecho mayor de los pueblos indígenas de la Cuenca amazónica. Manthra Editores (n.d); Cuatro Etnias (Sierra Nevada de Santa Marta), Declaración conjunta de las cuatro organizaciones indígenas de la Sierra Nevada de Santa Marta para la interlocución con el estado y la sociedad nacional, 1999. Downloaded from: http://www.unimag.edu.co/antropologia/SIERRA%20NEVADA.htm (accessed January 2006); Enrique Dussel, Política de la Liberación. Tomo I: Historia Mundial y Crítica. Trotta, Madrid 2007; Oscar Guardiola-Rivera, Being Against the World. Rebellion and Constitution. Birkbeck Law Press, New York 2009; Oscar Guardiola-Rivera, What if Latin America Ruled the World? How the south will take the north into the 22nd century. Bloomsbury, London 2010; Joanne Rappaport, Intercultural Utopias. Public Intellectuals, Cultural Experimentation and Ethnic Pluralism in Colombia. Duke University Press, Durham N.C. 2005; Silvia Rivera Cusicanqui, Ch’ixinakax utxiwa. Una reflexión sobre prácticas y discursos descolonizadores. Tinta Limón, Buenos Aires 2010; Catherine Walsh and García, Juan, “El pensar del emergente movimiento afroecuatoriano. Reflexiones (des)de un proceso” in D. Mato (ed.), Estudios y Otras Prácticas Intelectuales Latinoamericanas en Cultura y Pode. CLACSO, Consejo Latinoamericano de Ciencias Sociales, Caracas 2002, p. 317-326, and Catherine Walsh, “The Plurinational and Intercultural State: Decolonization and State Re-founding in Ecuador,” Kult, Vol. 6, 2008, p. 39-64.

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of racial equality, which many years later was to impact human rights,9 was included in the legal frames constructed in the newly-independent countries. However, the inclusion of the idea of racial equality in the legal elaborations of the new Latin American republics was, at the same time, used to cover over the struggles of the racialized subjects that brought them to light in the first place. In effect, in both periods, the ideas of rights which we can claim as being part of the contemporary global human rights heritage were central instruments to elites’ (or, more precisely, whites’) project of maintaining social, political and epistemological power over their racialised others. To understand how this is the case, we need to take  into account the transatlantic power struggles that took place in each period, in which racial hierarchisation played a central role. Indeed, when indigenous and afro-descendent social movements in Latin America criticise human rights for being the tools of the oppressor, they are taking as the point of departure these historical and epistemological developments. According to these movements, the dynamics at play during conquest, colonization, independence and republic building, where the construction of the subaltern Indigenous and Black other was pivotal, are not things of the past. On the contrary, they are fundamental elements of the continuous dynamics of hegemonic power, where exploitation, violence and control are exercised in interplay between the “concession” of rights, which works to quiet down social struggle, and the use of these new “conceded” rights to obstruct the continuity of the social struggles.

Race, Racism, and the Critiques of Human Rights In contrast to the critique of human rights launched by the indigenous and afro-descendent movements, many scholars, practitioners and laypersons alike – most often those in the North – share a belief by which human rights are regarded as being a meta-human and meta-political set of ideas and norms that protect us.10 That is, human rights are seen as something that transcends 9 10

The Convention on the Elimination of All Forms of Racial Discrimination entered into force in 1969. For a thorough analysis of this see Joaquín Herrera Flores, Los derechos humanos como productos culturales. Crítica del humanismo abstracto. Catarata, Madrid 2005; for analyses of similar issues see Costas Douzinas, The End of Human Rights. Critical Legal Thought at the Turn of the Century. Hart, Oxford 1999; Costas Douzinas, Human Rights and Empire. The Political Philosophy of Cosmopolitanism. Routledge-Cavendish, New York 2007; Grosfoguel 2009; Micheline R. Ishay, “Introduction. Human Rights. Histori-

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human political interests, and by this, they become the incarnation of goodness, equality and humanism. This idea cloaks the aspects of human rights that are constitutive of the problems they themselves seek to protect us from – the aspects, which are constitutive of the critiques with which this chapter is concerned. In the following, I will briefly present the central elements to these critiques. Before doing so, it is important to underline that the movements mentioned often regard human rights as the tools of the powerful that can, however, to some extent be used to work against power.11 Indeed, a central element to the critiques of human rights is concerned with the fact that, while one can argue that human rights work, they do so predominantly for people who already have rights – the one who owns property, the one who is a “proper” citizen, the one whose existence obeys the core logics of power. The criticism of the ways in which the Holocaust is the paradigmatic experience upon which racism is conceptualised as overcome, is sustained by taking into account and conceptualising the suspension of human rights through racist rationalities and governmentalities, as in the case of Gaza,12 Guantánamo, Iraq, Afghanistan, Sierra Leone, Colombia, Haiti, and the migrant zones. Human rights are suspended in relation to those people whose existence is constructed as the opposite of those whose existence obeys the logics of power. To pose that the existence of some people obeys the logics of power

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cal and Contemporary Controversies,” in Micheline R. Ishay, The Human Rights Reader. Routledge, New York 2007, p. xi-xviii; Michael Jackson, “Whose Human Rights?” in M. Jackson, Existential Anthropology. Events, Exigencies and Effects. Berghahn Books, New York 2005; Mignolo, 2000; Walter D. Mignolo, “Who Speaks for the ‘Human’ in Human Rights?,” in A. Forcinito, R. Marrero-Fente, and K. McDonough (eds.), Human Rights in Latin American and Iberian Cultures. Hispanic Issues On Line, Vol. 5(1), 2009, p. 7–24; Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. Routledge, London 1995; Boaventura de Sousa Santos, “Three Methaphors for a New Conception of Law: The Frontier, the Baroque, and the South,” Law & Society Review, Vol. 29(4), 1995, p. 569-584; Boaventura de Sousa Santos, “Toward a Muticultural Conception of Human Rights,” in B. E. Hernández-Truyol (ed.): Moral Imperialism. A Critical Anthology. New York University Press, NY and London 2000, p. 39-60; Shelley Wright, International human rights, decolonisation and globalisation: becoming human. Routledge, London 2001, and Sylvia Wynter, “Unsettling the Coloniality of Being/Power/Truth/Freedom Towards the Human, After Man, Its Overrepresentation – An Argument,” New Centennial Review, Vol. 3(3), 2003, p. 257-337. Suárez-Krabbe, 2011. This standpoint shares important similarities to that of US activist Malcolm X’s representation of the “house negro” and the “field negro”, and Caribbean-US writer and activist Audre Lorde’s critique of “the master’s tools”. Grosfoguel, A Decolonial Approach, 2009.

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is to pose an argument about racism:13 racism is the excess of some people’s affirmation of their existence at the expense – and negation – of the existence of others. It is also to underline, that there is a fundamental correlation between how some people think of others in terms of race, and how this racial thinking not only remains in the minds of people, but is constitutive of social and political – including legal – practice. Additionally, it is also to display that these ideas are naturalised to such an extent that those whose existence obeys the logics of power often actively ignore them. In contrast, these racist ideas are very tangible to the people whose existence does not obey the norm, and this is why it is important to take those readings and critiques into account. Simply, the ones whose existence does not comply with the norm are more in touch with a reality, which is invisibilised by those whose existence is the norm – those who inhabit the zone of being, to use Fanon’s terminology.14 An objection to the argument advanced here could be that the limits to human rights – the fact that they work predominantly for those who have already rights – are the core reason why many social movements around the world are concerned with them. In other words, one can say that the supposed universality of human rights is relevant for those who do not have access to them because it is through this de facto lack of universal application that the pretension of universality of human rights becomes relevant. We would, in this line of thought, need to move from the universal declaration of human rights to the universal application of human rights. According to my conceptualisation of human rights, they work to the extent that they are actually transformed and/or concretised – that is, when they have been de-linked from the reasons and practices from which they emerged. Thus, I consider human rights in Santos’ terms as globalised localisms. With globalised localism he refers to: the process by which a particular phenomenon is successfully globalised, whether it be the worldwide activities of the multinational, the transformation of the English language into a lingua franca, the globalisation of American fast food or popular music or the worldwide adoption of the same laws of intellectual ownership, patents or telecommunications aggressively promoted by the USA. In this mode of production of globalisation, what is globalised is the winner of a struggle for the appropriation or valuation of resources or the recognition of difference. This victory 13 14

Frantz Fanon, Piel negra, máscaras blancas. Akal, Madrid 2009 [1967] / Fanon, Frantz, Black Skins White Masks. Grove Press, London 2009. Trans: Charles Lam Markman. Fanon, 2009 [1967].

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translates into the capacity to dictate the terms of integration, competition and inclusion. In the case of the recognition of difference, the globalised localism implies the conversion of triumphant victory into a universal difference and the consequent exclusion or subordinate inclusion of alternative differences.15 When criticizing human rights as racist constructs, I analyse them as globalised localisms. However, human rights are not simply globalised localisms. Together with the conceptualisation of Santos, as globalised localisms, human rights operate in conjunction with processes of localised globalisms. The localised globalisms are the specific local impacts of the transnational practices of globalised localisms.16 For example, the theorised perspectives that the indigenous and afro-descendent movements have concerning human rights and development is based on these as localised globalisms. That includes, the environmental, social, economic, etc., effects of human rights practices such as, the militarization and US presence in Latin America, and the effects of drug production and trade. Besides these two hegemonic forms of production of globalisation, Santos raises two additional processes. On the one hand, he addresses cosmopolitanism. Santos’ notion of cosmopolitanism differs from other uses of the term by attending to power relations, and to the processes that are triggered from the spaces, which are nullified in dominant globalisation theories. Thus, for Santos, cosmopolitanism is: the transnational organised resistance of nation states, regions, classes and social groups victimised by the unequal exchanges which fuel globalised localisms and localized globalisms. They take advantage of the possibilities of transnational interaction created by the world system in transition, including those resulting from the revolution in information technology and communications. Resistance consists of transforming unequal exchanges into exchanges of shared authority, and translates into struggles against exclusion, subordinate inclusion, dependency, disintegration and relegation.17 An example of this kind of transnational organised resistance can include the Alianza Bolivariana para los Pueblos de Nuestra América (ALBA) integrated 15 16 17

Boaventura de Sousa Santos, “The Processes of Globalisation,” Revista Crítica de Ciências Sociais and Eurozine, 2002, p. 25-26. Santos, The Processes, 2002, p. 26. Santos, The Processes, 2002, p. 25-26.

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by Venezuela, Cuba, Bolivia, Nicaragua, the Commonwealth of Dominica, Honduras, Ecuador, Saint Vincent and the Grenadines, and Antigua and Barbuda.18 On a different level, cosmopolitanism is also exemplified in the collaborative networks for decolonisation among Latin American indigenous organisations. In this discussion the distinction between the zone of being and the zone of non-being – between those whose existence is the norm, and the ones against which “normality” is constructed – is a crucial distinction. In the zone of being, human rights are characterised by legality and protection. However, in the zone of non-being, rights require victims, and, more often than not, are articulated around the logic of appropriation, exploitation and violence.19 As I have already implied, this duality in terms of the applicability, or lack of the same of human rights needs to be understood in the historical connection of human rights to race. This connection emerged in the period of the first modernity, that is, the period of world history that comprises Spanish and Portuguese colonialism. With Spanish and Portuguese colonialism emerges the first systematic transatlantic connection by virtue of the colonizing endeavour and the transatlantic slave trade. Besides reminding us of the fact that what is transatlantic is not only comprised of more contemporary EuropeanUnited States relations, this focus also highlights that modernity emerged in the relationship of exploitation, violence and control that Southern Europe practiced against its African and American other. It is the subjective and existential aspects of this relationship to which we now turn.

The Imperial Attitude With Spanish colonialism and the European invention of America a complex entanglement of processes were initiated which had profound impacts in the constitution of the modern/colonial world system, and whose range extended 18

19

In Wikipedia, ALBA is described as, “an international corporation organisation based on the idea of social, political, and economical integration between the countries of Latin America and the Caribbean. It is associated with socialist and social democratic governments and is an attempt at regional economic integration based on a vision of social welfare, bartering and mutual economic aid, rather than trade liberalisation as with free trade agreements.” Visited on the 1st of September 2010. See also www.alianzabolivariana.org. See Suárez-Krabbe, 2011, and compare with Santos’ conceptual image of the abyssal line in Boaventura de Sousa Santos, “Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges,” Revista Crítica de Ciências Sociais and Eurozine, 2007, p. 1-35.

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from processes of subjectivity formation and identity to the economic, social, political, legal and epistemic ordering of the world. I conceptualise the world system as “modern/colonial” because “coloniality of power” – not colonial power – is the often overseen side of modernity. To the reader who is unacquainted with the Latin American theoretical tradition it is necessary to clarify that when we conceptualise global processes in terms of world-system, we are not recycling theories about globalization which emerged in the 1970s and 80s – we are developing them further. Thus, we speak of a world system where centre and periphery continue to play an important role, but whose coordinates are changing. However, these changes do not, at least not yet, challenge the colonial logic of the world system. They challenge only the capitalist ordering of the globe. Crucially, then, we speak not only of the world-system, but of the modern/colonial world system to emphasise that the logic by which the global processes function continue being colonial, that is, that the globalised localisms which emerged with the ‘discovery’ of America do still play a crucial organising role.20 The following illustrates this argument. Coloniality persists to this day. It starts with Spanish and Portuguese colonialism, in the first modernity between 1492 and the 18th century. The first modernity developed into the second modernity of Northern Europe from the 18th century onwards, whose most highlighted characteristics are the Industrial Revolution and the Enlightenment. As mentioned, in the first modernity begins Europe’s hegemony over the Atlantic, a crucial phenomenon in the transition to the second modernity, where (Northern) Europe will have achieved a position as geopolitical centre21 whose hegemony will only start to be dismantled in our present times. To posit that coloniality is intrinsic to all configurations of power today as I do here implies, among other things, that there is a direct link between colonial subjectivity and the modern subjectivity. Indeed, Enrique Dussel noted this historical connection in the early 1990s, arguing that the Cartesian ego cogito was preceded by the ego conquiro, the

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For more on this perspective see Enrique Dussel, “Europa, modernidad y eurocentrismo,” in E. Lander (ed.), La colonialidad del saber. Eurocentrismo y ciencias sociales. Perspectivas Latinoamericanas. CLACSO, Buenos Aires 2000, p. 41-53; Dussel, 2007; Arturo Escobar, “Mundos y conocimientos de otro modo. El programa de investigación de modernidad/colonialidad latinoamericano,” Tabula Rasa, Vol. 1, 2003, p. 51-86; Grosfoguel, A Decolonial Approach, 2009; Mignolo, 2002; Mignolo, 2006; Quijano, Coloniality of Power, 2000, and Quijani, Colonidad del Poder, 2000. Enrique Dussel, ‘La China (1421-1800) (razones para cuestionar el eurocentrismo)’, 2004, Downloaded from: http://www.afyl.org/articulos.html (accessed January 2014).

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I conquer of the first modernity.22 Dussel’s approach to the I conquer considers the historical processes that took place in the context of the ‘discovery’ of America (including the Caribbean) from the 16th century. The I conquer is the first modern subjectivity. It is a way of being, of existence, that seeks to erase the other through exploitation and violence. It is incarnated by the conqueror that arrived and practiced diverse forms of violence in the Americas, and represents an enslaving, male, and phallic ego.23 The first modern subjectivity is thus also a deeply gendered subjectivity.24 While Dussel’s conceptualization of the I conquer elaborates some of the ideas already being explored within the Latin American philosophical tradition, it is especially by virtue of Nelson Maldonado-Torres’ examination that we approach an understanding of the inevitable links between the colonial/ modern subjectivity, race and human rights. The discussion I am entering into here concerning the colonial origins of modern subjectivity are crucial: it reveals a significant blindness commonly found in our scientific approaches. Indeed, the construction of “man” or the “human” that some post-structural studies in the heritage of Foucault later were to seek to deconstruct, emerged in the context of the “discovery” of America. As several scholars have already shown, this construction is already in place during the 16th century in the context of the debates that took place among the Spanish colonial powers concerning the status of the indigenous peoples in the conquered territories, where the question of their “humanity” was interlinked with the question of whether the Spanish colonial powers had the “right” to exploit the Indians and their territories. These debates are perhaps best known as the Valladolid 22

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Enrique Dussel, 1492. El encubrimiento del Otro. Hacia el origen del mito de la Modernidad. Biblioteca Indígena, La Paz 1995./ Dussel, Enrique, The Invention of the Americas. Eclipse of “the other” and the Myth of Modernity. Continuum. Trans. Michel D. Barber. Note that the English scholar, Felipe Fernández-Armesto, has recently launched a different analysis which takes into account the importance of 1492 to world history into account in, Fernández-Armesto, 149, The Year When Our World Began. Harper-Collins, London 2009. Apparently, however, Fernández-Armesto has no knowledge about the Dussel’s seminal work – or that of other Latin American scholars – who have continuously worked on the analysis of the significance of the ‘discovery’ of America to global history. See Dussel, 1995; Dussel, 2008, and Irene Silverblatt, Moon, Sun, and Witches. Gender Ideologies and Class in Inca and Colonial Peru. Princeton University Press, Princeton N.J. 1987. See Dussel, 1995; Maria Lugones, “Heterosexualism and the Colonial /Modern Gender System,” Hypatia, Vol. 22(1), 2007, p. 186-209, and Nelson Maldonado-Torres, Against War, Views from the Underside of Modernity. Duke University Press, Durham and London 2008.

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debates, where two main positions were to be found. According to the position represented by Ginés de Sepúlveda, who frames his argument in secularised terms,25 the indigenous peoples were subhuman others who had to comply with more advanced peoples and their laws. If war was required to meet these aims, war had to be waged. Sepúlveda’s position obeyed the interests of the conquerors and the crown; it provided legitimisation for colonisation and exploitation. Bartolomé de Las Casas is often highlighted when presenting the second position in these debates.26 Las Casas rejected war as a means to “civilise” the other. Instead, he thought, the other must be won by reason, and otherness must – at least in principle – be respected. According to Las Casas, the indigenous peoples were human and were thus subject to rights, also the right to be different.27 Maldonado-Torres’s contribution expands upon this knowledge showing how, at the basis of the questions concerning the humanity of the Indians, of whether they were rational beings, of whether they had rights, lies the “racist/imperial Manichean misanthropic scepticism” – or “imperial attitude”28 of the I conquer. The imperial attitude questions the humanity of the conquered, and precedes the Cartesian methodic scepticism, whose central principle is the doubt. Maldonado-Torres emphasises the crucial significance of 25 26

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Juan Ginés de Sepúlveda, Tratado sobre las justas causas de la guerra contra los indios. FCE, México 1996 [approx 1550], p. 109-113. Bartolomé Las Casas (n.d), Brevísima relación de la destrucción de las indias, [1552], Downloaded from http://www.ciudadseva.com/textos/otros/brevisi.htm (accessed January 2014). See also Paolo G. Carozza, “From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights,” Human Rights Quarterly, Vol. 25, 2003, p. 282-313; Daniel Castro, Another Face of Empire. Bartolomé de Las Casas, Indigenous Rights, and Ecclesiastical Imperialism. Duke University Press, Durham N.J. 2007; Enrique Dussel, “Meditaciones anti-cartesianas: sobre el origen del anti-discurso filosófico de la Modernidad,” Tabula Rasa, Vol. 9, 2008, p. 153-197; Guardiola-Rivera, 2010; Martti Koskenniemi, “Colonization of the ‘Indies’. The origins of international law?,” in Y. Gamarra Chopo (ed.), La idea de América en el pensamiento ius internacionalista del siglo xxi. Universidad de Zaragoza 2010, p. 43-64; Alfonso Maestre Sánchez, “Todas las gentes del mundo son hombres. El gran debate entre Fray Bartolomé de las Casas (1474-1566) y Juan Ginés de Sepúlveda (1490-1573),” Anales del Seminario de Historia de la Filosofía, Vol. 21, 2004, p. 91-134; Suárez-Krabbe, 2011, and Wynter, 2003. Nelson Maldonado-Torres, “Sobre la colonialidad del ser. Contribuciones al desarrollo de un concepto,” in S. Castro-Gómez and R. Grosfoguel (eds.), El giro decolonial. Reflexiones para una diversidad epistémica más allá del capitalismo global. Siglo del Hombre, Bogotá, p. 127-168./ Maldonado-Torres, Nelson, “On the Coloniality of Being. Contributions to the development of a concept,” Cultural Studies, Vol. 21(2-3), 2007, p. 245.

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the doubt, or question, of the Manichean misanthropic scepticism because of its centrality to understanding the existential and political dimensions of the I conquer for the conqueror and the conquered. Indeed, Misanthropic scepticism doubts in a way the most obvious. Statements like ‘you are a human’ take the form of cynical rhetorical questions: Are you completely human? ‘You have rights’ becomes ‘why do you think that you have rights?’ Likewise, ‘You are a rational being’ takes the form of the question ‘are you really rational?’29 What is important about misanthropic scepticism are not the answers to the questions posed above. What is important are the questions themselves. It is this doubt about the humanity of the other that relegates the other to the zone of non-being, where she is expected to remain or constantly prove her being: The Misanthropic scepticism provides the basis for the preferential option for the ego conquiro, which explains why security for some can conceivably be obtained at the expense of the lives of others. The imperial attitude promotes a fundamentally genocidal attitude in respect to colonized and racialized people. Through it colonial and racial subjects are marked as dispensable.30 Indeed, the imperial attitude quickly became a racist and colonial common sense that radicalised and naturalised the non-ethics of war. Maldonado-Torres’ non-ethics of war31 is a similar conceptualization to that by which some indigenous movements in Latin America operate, that of the death project, a conceptualization that entails the aspects of European modernity that connect it to capitalism, coloniality, the depredations against nature and the genocidal attitude to European modernity’s many others.32 The Manichean doubt had already become common sense by the time that the Pope, in 1537, declared that the Indians were humans. In this way, the Pope’s declaration did not really make a difference.33 Accordingly, it was already at play when the Valladolid debates took place. This imperial common sense was never questioned by the Cartesian doubt either, and, as we will 29 30 31 32 33

Maldonado-Torres, 2007, p. 246. Maldonado-Torres, 2007, p. 246. (Italics retained). Maldonado-Torres, 2007, p. 247. Suárez-Krabbe, 2011. See also Maldonado-Torres, 2008. Maldonado-Torres, 2007. See also Quijano, 1992.

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see, it has been left unquestioned in subsequent dominant thought – the globalised localisms concerned with conceptualizing the social, the political, and the legal. This is not coincidental. Rather, historically it connects to the processes that took place in the transition between the first and the second modernity, when Northern Europe started to take over the power over the transatlantic connection and slave trade previously held by Spain and Portugal. We will return to these processes in subsequent sections.

The Imperial Attitude, Racism, and Human Rights It is impossible in a chapter of this nature to account for the processes of the construction of the idea of the human being, race and human rights in their complexity. However, a brief account is necessary for the further development of the argument. When the Spanish conquerors, people who represented the Spanish Crown, and people who represented the Spanish Christian Church debated the question of whether the indigenous people in the Americas were human, they were representing three different positions.34 The conquerors were interested in rapid enrichment through the exploitation of the gold and other natural resources to be found in the Americas. Thus, to them, it was convenient that the Indians were not regarded as human beings. The Spanish Crown, also concerned with rapid enrichment, found some ethical limits in its connection to the Church – more specifically to the obligation of evangelization, which also rested upon it. For the most part, the endeavour of the Crown was aimed at protecting the life of the Indians and facilitating their evangelization. To the Crown, the Indians were part of the value of the “discovered” territories, they were labour force, and they were tributaries to the Crown. The Church – as illustrated by the thought of Las Casas in a previous section – predominantly defended that the Indians were human and had to be taken as such. They had the potential of becoming Christian, and thus of becoming fully human. The main concern of the Church was the evangelising endeavour. In spite of these differences among the Spanish, the point that is central to take into account in the context of this chapter relates to the fact that in all three positions, the indigenous peoples were regarded as being inferior to the Spanish. The African slave’s humanity was not even debated – they were 34

Hans Joakim König, “Introducción” in Hans-Joachim König (ed.), El indio como sujeto y objeto de la historia latinoamericana. Pasado y presente. Iberoamericana, Madrid 1998, p. 13-34.

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not human. The hierarchization of human beings, which implies that some humans discuss whether other humans are human, or how human they are, is the basic trait of racism. The discussions were made on the basis of what the Spanish powers took to be important elements constituting the human: religion, social organization, political organization and thought. The less similar people were to Spanish ways of being, the less human people would be regarded. Another important element of racism is that having the power to discuss whether someone is human or not is already an element that displays the racist ordering of a society. Thus, while many scholars defend that especially the Church was often “on the side of the Indigenous” they often leave unquestioned the fact that “being on the side of the indigenous” was a privilege that only Spanish elites had. In this way, this common sense approach to these problems was not only an early version of what we today know as cultural racism – it is a racist way of thinking that also pervades today in the academic realm.35 It is on the basis of this understanding of the complexity of the historical trajectory of racism that we understand how, when the Spanish elites were debating the “rights of peoples” (jus gentium), they were doing so from a position, which had already granted them the privilege of defining rights. Francisco de Vitoria, an important figure in the discussions of the School of Salamanca on natural law, the rights of peoples (jus gentium), fair play, sovereignty and just war, can also be regarded among the first thinkers of the modern colonial capitalist world system, and is often seen as the father of international law. His deliberations included an exploration of the moral basis of trade based on profit.36 Vitoria’s work condenses, in significant ways, the positions of the Crown, the Conqueror and the Church to form a reason, and an ethics, of war. As Anghie has shown, Vitoria provides principles for the distinction between natural law, human law and divine law in order to conceptualise the “Indian question”, that is, the legitimacy of imperial power regarding indigenous peoples in America. Within this distinction, he makes a crucial manoeuvre in situating questions having to do with ownership and property within natural and human law. While divine law, mediated by the 35 36

See Suárez-Krabbe, 2011. See also Anthony Anghie, “Francisco de Vitoria and the Colonial Origins of International Law,” Social and Legal Studies, Vol. 5, 1996, p. 321-336; Anthony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law,” Harvard International Law Journal, Vol. 40(1), 1999, p. 1-71; Anthony Anghie, Imperialism, Sovereignty and the Making of International Law. Cambridge University Press, New York 2004, and León Gómez Rivas, “Economía y Guerra. El pensamiento económico y jurídico desde Vitoria a Grotio (y después),” Stud. his., H.a mod, Vol. 27, 2005, p. 135-159.

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Pope, is limited to the Christian world, natural and human law transcend cultures. Inasmuch as they transcend specific cultures, they are universal – here are the bases of the law of peoples, jus gentium.37 Vitoria emphasises the humanity of the indigenous peoples in some parts of his discussion while he in others excuses just war against them. He does so because, according to the Spanish, the Indians are, potentially, ontologically equal to them. However, the ontological definition occurs within Spanish Christian epistemological frameworks – there is covering over at the centre of the definition: what for the Spanish is a potential is, at the same time, a negation. By which I mean, a potential to sameness is a negation of difference. This concealment makes possible to grant meta-legal status to the war against the Indians. The foundations of international law and the doctrine of sovereignty contain this ambiguity – which is obscured or explicitly negated in studies of international relations and international law.38 The privilege that the Spanish elites granted themselves to define rights was based on the imperial common sense that, although concluding that the indigenous peoples were human, was founded upon the doubt about their and other racialized people’s humanity. Most salient in this context was, of course, the complete invisibility of the African peoples who were brought to the Americas to replace the indigenous people as central workforce. The connection between this early version of racism and rights is to do with the criteria that, with the imperial attitude, were already commonsensical criteria of characterising humans from inferior humans (in this case the indigenous people) or non-humans (the African slaves). Some of the criteria that are implicit in the imperial attitude, and which persist today, to define the degree of humanity of someone, are: to have a specific notion of time which shrinks the present and brings the future out of hand; to have a notion of private property; to be predominantly individual-centred; to be anthropocentric; to have specific gender notions and relations between men and women (understood as Europeans understand gender); to have a Christian religiosity; to be sedentary societies; to deny the existence of other ways of being and thinking about the world; and to endorse the European, or white, ways of being and living as the only valid ways of being and living in the world.39 These discussions were relevant in the 16th century in relation to the Indians in the Americas, and they continue to have a central place today – for example in the academic and 37 38 39

Anghie, 1996, p. 324-326. See also Francisco de Vitoria, Relecciones sobre los indios. El Búho, Bogotá [1539] 1981. See Anghie, 1996, 2004. Suárez-Krabbe, 2011. See also Anghie, 1996, 1999, 2004.

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media discussions about whether democracy can be achieved in non-western countries (Huntington, Fukuyama), or in the questions concerning whether women play a role in the Arab Spring revolutions.40 The ones whose rights are protected are in most cases those who, regardless of skin colour, comply with these criteria. As I have implied in the introduction, this is to do with the inception of racist governmentalities which sustained the ideas of human rights as the overcoming of racism, and which hence, depend upon the suspension of rights as in the cases of Gaza, Guantánamo, Iraq, etc.

The Three Layers of Negation The dynamics between social struggle and the subsuming or neutralisation of these by hegemonic power is pivotal to understanding Latin American ethnic and social movement’s critiques of human rights. As I have already suggested, the struggles of racialized subjects contributed to vital changes in terms of ideas and legal issues of the second modernity. While the period leading up to the Latin American independence(s) and of republic building (at the end of 18th century and the beginning of the 19th) is interesting in itself, it is particularly so in the context of reviewing the global configurations of power in this current century. In this historical moment the transatlantic elites become more cohesive among themselves; and they also continue to deny, or indeed render obsolete the social struggles that, however, powerfully affect their thought and political practice. This historical moment also exemplifies how the impact of the social struggles was negated in the subsequent thought on human rights to our days. The criticisms that came to be known as the Black Legend, had already been advanced, especially during the Enlightenment.41 The Black Legend involved the representation of Spanish colonialism as being anachronistic and particularly cruel. As a Protestant backlash towards Catholic colonial Spain and Spanish imperial practices, it covered the imperial interests of Northern European (British, Danish, Dutch, French, German) and North American colonialisms, implying that they, by contrast to the Spanish, were humane and

40 41

See also Adlbi Sibai, Sirin, 2011: Mujeres, revoluciones árabes y colonialidad. Revista Solidaridad Internacional, 60. 17-18. Julián Juderías coined the term in his 1914 book, The Black Legend and Historical Truth (La leyenda negra y la verdad histórica) in reference to anti-Spanish propaganda.

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modern.42 The Black Legend played an important role as a third layer of negation, whereupon colonialism was legitimised. The first layer being, as discussed earlier, the imperial attitude’s negation of the other. The second layer was the Cartesian ego cogito, which concealed the covering over of the other, and was built upon the I conquer. The third layer is an extension of these negations whereby Spain (and Southern Europe) themselves are located in a border zone. They are considered neither modern nor colonial. Instead, they are relegated to a position ‘between Prospero and Caliban’.43 Among the common assumptions of the transatlantic elites, was an understanding of the others as being in an earlier stage in the history of humanity; more specifically, at an earlier stage of Northern European history. For indeed, the Black Legend effectively cemented of the imaginary wall which would for centuries deny the transatlantic nature of western ideas since the “discovery” of America, and, as mentioned, create a North-South divide within Europe as well.44 This barrier is one of the reasons why many students of human rights depart from the assumption that these mainly are a product of the 17th and 18th centuries’ Northern European thought, particularly tied to Hobbes (Leviathan, 1651) and Locke (Two Treatises of Government, 1690). The rights’ narrative commonly is constructed chronologically from the English Bill of Rights in 1689, through the US Declaration of Independence in 1776, and the Declaration of the Rights of Man and of the Citizen in 1788 that stems from the French Revolution. According to this narrative, these declarations reach a culminating point in 1948 with the Universal Declaration of Human Rights and the subsequent “generations” of rights.45 This historical narrative, however, is part of the third layer of negations mentioned above. Reassessing the history of human rights in the second modernity implies penetrating those three layers of negation. While this chapter cannot offer to do this, it can, as mentioned in the introduction, briefly present this second derivative aspect of analysis elucidating the ways in which 42

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John Beverley, “Spain, Modernity and Colonialism,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 599. For an interesting analysis of this condition in the case of Portugal, see Boaventura de Sousa Santos, “Between Prospero and Caliban: Colonialism, Postcolonialism, and Inter-Identity,” Luso-Brazilian Review, Vol. 39(2), 2002, p. 9-43. See Santos, Between Prospero, 2002, and Walter D. Mignolo, The Idea of Latin America. Blackwell, Oxford 2005. Ian Balfour and Eduardo Cadava, “The Claims of Human Rights: An Introduction,” The South Atlantic Quarterly, Vol. 103(2/3), 2004, p. 282; Jackson, 2005, p. 166, and Douzinas, 2000, 2007.

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the construction of race not only crystallised, but continued playing a pivotal role in the context of the social struggles of the racialized subjects in Latin America during independence and republic-building. As mentioned, these struggles achieved that the idea of racial equality, which many years later was to impact the Universal Declaration, became included in the legal frames constructed in the newly-independent countries. However, the idea of racial equality, which put the Latin American and Caribbean legal tradition in the forefront, became a legal element and an idea, which was used to cover over the struggles of the racialized subjects that brought them into the light in the first place. Let us briefly see how.

Social Struggles, Rights, Assimilation and Control In 1776 the Europeans – who, under the Spanish and English colonization of the region, had come to what currently is the USA – declared themselves independent from British colonial power and affirmed the rights of “men”. Their Declaration of Independence did not acknowledge African-descendent slaves as “men”, and it portrayed these Europeans as vulnerable to the “merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions”.46 On the one hand, it is clear that “the people” to whom the Declaration refers were only a few human beings who are, partly, the incarnation of civilisation (in its latest stage of progress). On the other hand, that the “Indian Savages” are not “real people” – at least not people with rights due to their violent nature and destructive behaviour. Blacks were invisible to the signatories of the declaration. In this document, rights clearly cover over colonialism and coloniality – and not only the other. The Latin American elites’ independence movements relied on similar discourses. However, while the US elites disguise their own colonial activity through the belittling of Indians on the grounds of alleged primitiveness, the Latin American elites would highlight the indigenous virtues, by returning to some of the ideas of the Church during the Spanish colonial regime, most notable those of the Dominican friar Bartolomé de Las Casas. Overall, the independence movements in the first half of the 19th century in the Spanish and Portuguese colonies were connected to European impe46

See http://www.ushistory.org/declaration/document/ (accessed in December 2010). For analyses of the complexity of attitudes towards the indigenous peoples in the British colonial territories see Merete Falck Borch, Conciliation – Compulsion – Conversion. British Attitudes Towards Indigenous Peoples, 1763 – 1814. Rodopi, Amsterdam 2004.

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rial conflicts over economical and political control of the “new” territories and the Atlantic circuit. They materialised simultaneously with French usurpation of power in Spain and Portugal in 1807–8. When the French armies occupied large parts of Spain and King Ferdinand VII had been imprisoned, the Spanish Empire underwent some important changes. Although the King’s authority was not explicitly questioned, the cities in Spain and the colonies started to organise into local governments. Contextually, the Spanish authorities gradually lost power to the Creole elites (people of Spanish and Portuguese descent born in the colonies, and second to Europeans in the social/ racial hierarchy). In 1810, the Constitutional Courts in Cádiz were established in order to decide upon a constitution for the monarchy, for a grand Spanish nation including its colonies in the Americas. The Constitutional Courts in Cádiz quickly recognized indigenous citizenship largely because the idea of their “legal liberty and nominal equality” was already established in the Spanish legislation of the time.47 They did not recognize, however, the same rights for people of African descent who were free (pardos). Enslaved people were not discussed in this context. According to Marixa Lasso, recognising the same rights to pardos would mean that the demographic majority would lie with the Americans, because few of them could prove the purity of their bloodlines. And cleanliness of bloodlines (Spanish descent) was an important factor in social organisation of the time. Thus, almost all Americans could claim ascendance to freed African slaves. In this manner, questions of racial equality acquired centrality not only in these debates, but also in regard to the construction of the nations in the Americas. That these questions were debated does not mean, however, that the covering over of the other was in any way questioned or overcome. In addition to these developments some revisions of the history of Latin America and the Caribbean (concerned with the period of independence and republicanism in the 19th century) suggest that the partial recognition of racial equality in a number of Latin American countries was the effect of the social struggles of the time.48 Indeed, by the end of the wars of independence in 1824, 47 48

Marixa Lasso, “Un mito republicano de armonía racial. Raza y patriotismo en Colombia 1810-1812,” Revista de Estudios Sociales, Vol. 27, 2007, p. 35. Dussel, 2007, p. 201-206; Marixa Lasso, “Haití como símbolo republicano popular en el Caribe colombiano: Provincia de Cartagena (1811-1828),” Historia Caribe, Vol. 3(8), 2003, p. 5-18; Marixa Lasso, “Race, War and Nation in Caribbean Gran Colombia. Cartagena 1810-1832,” American Historical Review, April 2006, p. 336-361, and Dolcey Romero Ja-

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the constitutions of all the nations in Spanish America granted legal racial equality to their free populations of African descent and a nationalist racial ideology had emerged that declared racial discrimination – and racial identity – divisive and unpatriotic”.49 In the context of the processes of independence and republicanism in Gran Colombia (now Venezuela, Panama, Ecuador and Colombia plus small portions of Costa Rica, Perú, Brazil, Guyana and Nicaragua), racial equality was in several instances a condition put forth by indigenous and free black leaders in exchange of their support in the independence struggles.50 Within the Caribbean parts of Gran Colombia, Afro-Latin Americans were not mere ‘cannon fodder’; they participated and influenced the political debates about citizenship in the revolutionary period, sometimes pushing the elites to acquiesce to radical measures they had not initially contemplated.51 The degree of the support to the independence struggles of the indigenous people vis-à-vis the free blacks can be questioned by considering that the Spanish empire, granted the indigenous peoples citizenship, while denying it to blacks. To some of the indigenous populations in Latin America (as well as to some of the Creole elites), the protection of the Spanish crown appeared a better outcome than that offered by the idea of independence. However, the different indigenous rebellions throughout the continent in this period demonstrate that the indigenous peoples were also engaged in the search for the construction of a different society than the one offered by the colonizers and their descendants.52 Significantly, the indigenous and blacks on occasion were in a position to negotiate conditions to the elites. As mentioned, this was related to the fact that they were demographic majorities

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ramillo, “El fantasma de la revolución haitiana. Esclavitud y libertad en Cartagena de Indias 1812-1815,” Historia Caribe, Vol. 3(8), 2003, p. 19-33. Lasso, 2006, p. 336-337. Dussel, 2007, p. 201-206; Lasso, 2003, 2006 and Romero, 2003. Lasso, 2006, p. 337-338. See Gustavo Faverón Patriau, Rebeldes. Sublevaciones indígenas y naciones emergentes en Hispanoamérica en el siglo xviii. Tecnos, Madrid 2006, and Juan Antonio Hernández, “Marronage and Rebellion in the Hispano-American Caribbean,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 569-573.

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whose support was necessary to wage the independence wars. Additionally, their rebellions – large and small – had decisive effects in this context. Among the most significant of these rebellions were the Tupac Amaru rebellion in the Viceroyalty of Peru between 1780 and 1782, and the Haitian revolution between 1791 and 1804. Indeed, news of these and other rebellions travelled throughout the continent and to the other, European side of the Atlantic, being widely discussed among the elites of the time.53 Their effects were powerful, generating fear and insecurity among these white elites. Many of them feared that the idea of racial equality could mean “chaotic” conditions, similar to those faced in Haiti.54 As we saw previously, in the context of Caribbean Gran Colombia, some of the white elites started to negotiate this idea with the free black leaders. However, the perception of racial equality as entailing mayhem – and disorder implying the loss of control of the means of production of goods, including lands – can be a reason why, in the end, the fear of the other led the Creole elites to identify more with the elites from the north than with the peoples who had enabled their revolutions.55 Like in other newly independent territories in Latin America, in Colombia’s early republican period the idea of racial equality transmuted into the idea of the mestizo raza (Indian-European) as a universal race in which the quality of being Colombian could be created. This idea prepared the ground for attempts in Colombia to ‘whiten’ the population. Indeed, even though Mestizo identity implies “whitening” some and “blackening” others, the racial hierarchies continue to play an important role in the idea of mestizaje. Thus, the more “white” a Mestizo, the better.56 In this way, the victories of the social struggles were only partial. They had nevertheless sown seeds that were to become important in the context of the present social and ethnic struggles.57 In the 19th and 20th century, however, the white elites dictated the terms, for example, of racial equality and citizenship.

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See especially Dussel, 2007 and Lasso, 2006. Interestingly, as Buck-Morss suggests, it was also largely due to the Haitian revolution that Hegel acquired his idea of the relation between lordship and bondage, Susan Buck-Morss, “Hegel and Haiti,” Critical Inquiry, Vol. 26(4), 2000, p. 821-865. See Lasso, 2003, and Romero, 2003. Dussel, 2007. See also Arturo Arias, “Anti-Colonial Struggle in Latin America from the Conquista to the Present,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 522-526. See Dussel, 2007, and Guardiola-Rivera, 2010.

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Indeed, the idea of Latin America evolved among the Creole and Mestizo elite populations who were now identifying with European histories.58 The belief that the only way possible for the course of history to unfold was toward European modernity, civilisation, and progress inherited from the initial moments of conquest and colonisation had become the “natural” order of things. To the Creole and Mestizo elites, Latin America, as an extension of the new central axis of European imperial powers and intellectual centres of Germany, France and the United Kingdom, was the domain of the “Latin” race (not of the American Indian, nor of those of African descent). After the period of independence and republic-building, Latin America took shape reproducing and adapting colonial hierarchies and social organisation to fit the interests of the new elites, that is, through “internal colonialism”.59 As Mignolo has noted,60 Creole identity emerged in a doubled way; as geo-political consciousness in relation to Europe, and as racial consciousness in regard to the other populations in the colonies. The questions and concerns among the Creoles were subsequently markedly different from those of the Afro-descendent and indigenous peoples. While the Creole/Mestizo experience in Latin America, as that of the US Americans, is marked by its participation in colonial and imperial projects and concurrently by their being imperial and colonial subjects, the colonial histories of the people of African-descent are entrenched with the African diaspora, slavery, resistance, cimarronismo, quilombolismo and rebellion, and the stories of indigenous peoples determined by the population’s relation to, and rebellion and resistance against Spanish institutions and settlements.61 The period of independence of Latin America is woven into the general decline of Spain as a major colonial power, and the rise of Northern Europe and the US as imperial powers. While the independence movements explicitly used the idea of racial equality, the elites in the US largely ignored race. As the French Revolution and the Declaration of the Rights of Man and the Citizen attest, the concerns for racial equality had been absent in these latitudes for some time. Contrary to the idea of progress and to, for example, the debates on the rights of people in the 16th century, consideration about the colonial 58 59 60 61

Mignolo, 2005. Dussel, 2007, and Mignolo, 2005. Mignolo, 2005. Julia Suárez-Krabbe, “Spanish Colonialism in a World Perspective” and “Postcoloniality and Alternative Histories: Latin America,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburg 2008.

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aspects of issues concerning citizenship and (in)equality were increasingly absent from elaborations of the ideas of rights.62 These ideas became, more and more, detailed within the epistemological frames drawn by the “protonational” and “national” “limited and sovereign”,63 and by the configuration of “the Citizen” within these structures. In order to fit into the category of the citizen, a person had to conform to requirements regarding religion, blood, colour, gender, knowledge, government, property, etc. as defined by European white male elites. According to the dominant imaginaries, the colonised still had to progress towards maturity before they themselves could be expected to start processes that marked civilised societies including that of defining rights.

Concluding Remarks The ideas of the French Declaration of the Rights of Man and of Citizens, of the US Declaration of Independence, and those of the Latin American self-determination movements and constitutionalist endeavours were varied continuations of a theme that began to be discussed with the management of the colonised lands of America.64 All were, in diverse ways, concealing the “imperial/racist Manichean misanthropic scepticism” or “imperial attitude” in relation to the emerging focus on the nation state, and particularly in relation to the category of “the citizen” – a condition not granted to all inhabitants. The imperial attitude is a common sense, which provided the core grounding for the ways in which the global elites – those whose humanity, rationality, usefulness, etc is not questioned by hegemonic power – produced the ignorant, the residual, the inferior, the local and the non-productive.65 In other words, it was a central element of racist thought, and, as mentioned, it has been left unquestioned. This explains precisely the duality of human rights, 62 63

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Mignolo, 2000, p. 29. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism. Verso, London 1991, and Kelvin Santiago-Valles, “‘Race,’ Labor, ‘Women’s Proper Place,’ and the Birth of Nations. Notes on Historicizing the Coloniality of Power,” NewCentennial Review, Vol. 3(3), 2003, p. 47-68. See also Césaire, 2006. Boaventura de Sousa Santos, Crítica de la razón indolente. Contra el desperdicio de la experiencia. Vol I. Desclée, Bilbao 2005 / Santos, Boaventura de Sousa, A Critique of Lazy Reason. Against the Waste of Experience. Downloaded from http://www.ces.uc.pt/bss/ documentos/A%20critique%20of%20lazy%20reason.pdf (accessed January 2014), p. 160-162.

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and why the security of some, as Maldonado says, happens at the expense of the lives of others. The imperial attitude is also central to understand how it comes to happen that the struggles of the subaltern, which have had an important impact upon the ideas that were to be named as human rights, have played an insignificant and largely overlooked role in the history of human rights. Scholar of law Paolo Carozza has argued that the fact that the ideas of the French and North American revolutions echoed in Latin America is not simply a matter of mimicry:66 these ideas resounded in Latin America because they, in many ways, were based on the same legacies, dating back to the Spanish colonial endeavour. Although some of the ideas concerning racial equality seem to have been promoted by the blacks and the indigenous movements, the fact remains that the independence movements, in terms of ideas, were the work of the elites.67 More precisely, they were the work of the educated Creole elites who I conceptualise as being part of the global elites. As Mary Ann Glendon states: Though conventional history treats Latin American constitutionalism as merely derivative of American and European models, it is more accurately regarded as representing a distinctive fusion of moral and political traditions. The insistence on the correlation between human rights and duties, for example, has been a characteristic feature of Latin American political philosophy and constitutional law since the beginning of the nineteenth century. The universalizing, internationalist dimension of this heritage was furthered by the Inter-American Conference, established in 1890.68 In contrast to what Glendon is suggesting concerning some “originality” of the “Latin American tradition”, I suggest that it is more realistic to see the legacy of human rights as the variety of ramifications of mono-logic ideas concerning rights, sovereignty and citizenship of the global white elites. These elites include those in Latin America, who, precisely in this period of history, begin 66 67

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Carozza, 2003. In the years up to the American revolutions, the Spanish crown “tried to abolish all professorships of public law, natural law and the ius gentium in the colonial universities and seminaries, and to ban all teaching of doctrines of popular sovereignty, Carozza, 2003, p. 299. Mary Ann Glendon, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea,” Harvard Human Rights Journal, Vol. 16, 2003, p. 33.

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to emphasise the (northern) European origins of civilization and modernity. In doing so they obscure the participation of Spain, Latin America and Africa in “world” history, including the history of ideas.69 That Latin American elites contribute in the construction of these historical blindnesses is an expression of the internal colonialism.70 Recent studies have shown how these same earlier Latin American constitutions were important inspiration in the context of the drafting of the International Declaration of Human Rights in the mid-20th century, and centre in arguing for the need to recognize the “creolized” nature of human rights. It is important to note, first, the fact that this aspect of the becoming of human rights has been neglected until recently is to do with the imperial attitude, which had as another side-effect that the global elites – those who write history – have not taken into account the period of the first modernity, and hence have overseen important elements to the understanding of global history, and taken for granted that the subaltern did not have any role to play in the shaping of history. In relation to the approaches to human rights that seek to present these as the products of creolization, it is pivotal to take into account that, if such creolization has taken place, it has happened at the expense of the subaltern. In other words, it is a creolization among elites, who have appropriated ideas stemming from social struggle to obey their interests, and by excluding the “other”. For the most part, however, the idea of racial equality – and that of abolitionism – are often believed to have emerged as great concessions of the white man, and not as the results of the struggles of the subaltern. This is important, irrespective of the fact that the idea of racial equality, as adopted by the elites, has subsequently been used more to oppress by, than to impulse radical social change. Finally, these aspects of the history of human rights are pivotal to understand, in a complex manner, the criticisms that some social movements, at least in Latin America, launch at human rights today. Indeed, these movements pose that theoretical, legal and practical concerns of human rights are conditioned by coloniality, which again defines the limits permissible to theory, legalism and practice. Inasmuch as human rights are ideas and practices in which processes of identity construction and power relations are enacted and experienced, the discussion of other possible worlds – those which the Latin American social and ethnic movements are engaged in constructing or recontextualising – is crucial. The reluctance that I mentioned in the intro69 70

See Dussel, 2008. Pablo Gonzá lez Casanova, “Colonialismo interno. Una definición,” in América Latina. Historia y Destino. Homenaje a Leopoldo Zea. UNAM, México 1992.

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duction to take seriously these criticisms and to change the terms of the discussions about human rights may well be attached to an existential and ontological insecurity. Existentially, the dominant ideas of human rights seem to connect many individuals to the modernist and modernising utopias71 of “human prosperity” and “equity”. These utopias are similar to those by which conquest and colonisation were justified and implemented.72 In this sense, the notions of human rights can be said to constitute a particular utopia of the global white elites about humanity, an utopia defined on the basis of the negation of the other. In other words, it is based on an inherently racist conception of what being human means. This is the core of the critique launched by many social and ethnic movements, and it is, indeed, a valid critique that requires a profound re-assessment of our knowledge about and practice of human rights.

References cited Adlbi Sibai, Sirin (2011): Mujeres, revoluciones árabes y colonialidad. Revista Solidaridad Internacional, 60. 17-18. Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism. Verso, London 1991. Anghie, Anthony, “Francisco de Vitoria and the Colonial Origins of International Law,” Social and Legal Studies, Vol. 5, 1996, p. 321-336. Anghie, Anthony, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law,” Harvard International Law Journal, Vol. 40(1), 1999, p. 1-71. Anghie, Anthony, Imperialism, Sovereignty and the Making of International Law. Cambridge University Press, New York 2004. Arias, Arturo, “Anti-Colonial Struggle in Latin America from the Conquista to the Present,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 522-526. Balfour, Ian and Eduardo Cadava, “The Claims of Human Rights: An Introduction,” The South Atlantic Quarterly, Vol. 103(2/3), 2004, p. 277-296.

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Mónica Espinosa, “El que entiende esa palabra, ¿de qué manera aprendió?,” Nómadas, Vol. 26, 2007, p. 138-153. Suárez-Krabbe, 2011.

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Beverley, John, “Spain, Modernity and Colonialism,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 599-601. Borch, Merete Falck, Conciliation – Compulsion – Conversion. British Attitudes Towards Indigenous Peoples, 1763 – 1814. Rodopi, Amsterdam 2004. Buck-Morss, Susan, “Hegel and Haiti,” Critical Inquiry, Vol. 26(4), 2000, p. 821-865. Carozza, Paolo G., “From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights,” Human Rights Quarterly, Vol. 25, 2003, p. 282-313. Castro, Daniel, Another Face of Empire. Bartolomé de Las Casas, Indigenous Rights, and Ecclesiastical Imperialism. Duke University Press, Durham N.J. 2007. CDP (Comunidad de paz de San José de Apartadó), Un proyecto de caminar comunitario. Downloaded from: www.cdpsanjose.org (accessed December 2004). Césaire, Aimé, Discurso sobre el colonialismo. Akal, Madrid 2006. CONAIE, et al., Somos hijos del sol y de la tierra. Derecho mayor de los pueblos indígenas de la Cuenca amazónica. Manthra Editores (n.d). Cuatro Etnias (Sierra Nevada de Santa Marta), Declaración conjunta de las cuatro organizaciones indígenas de la Sierra Nevada de Santa Marta para la interlocución con el estado y la sociedad nacional, 1999. Downloaded from: http://www.unimag. edu.co/antropologia/SIERRA%20NEVADA.htm (accessed January 2006). Douzinas, Costas, The End of Human Rights. Critical Legal Thought at the Turn of the Century. Hart, Oxford 1999. Douzinas, Costas, Human Rights and Empire. The Political Philosophy of Cosmopolitanism. Routledge-Cavendish, New York 2007. Dussel, Enrique, 1492. El encubrimiento del Otro. Hacia el origen del mito de la Modernidad. Biblioteca Indígena, La Paz 1995./ Dussel, Enrique, The Invention of the Americas. Eclipse of “the other” and the Myth of Modernity. Continuum. Trans. Michel D. Barber. Dussel, Enrique, “Europa, modernidad y eurocentrismo,” in E. Lander (ed.), La colonialidad del saber. Eurocentrismo y ciencias sociales. Perspectivas Latinoamericanas. CLACSO, Buenos Aires 2000, p. 41-53. Dussel, Enrique, ‘La China (1421-1800) (razones para cuestionar el eurocentrismo)’, 2004, downloaded from: http://www.afyl.org/articulos.html (accessed January 2014). Dussel, Enrique, Política de la Liberación. Tomo I: Historia Mundial y Crítica. Trotta, Madrid 2007. Dussel, Enrique, “Meditaciones anti-cartesianas: sobre el origen del anti-discurso filosófico de la Modernidad,” Tabula Rasa, Vol. 9, 2008, p. 153-197.

r ace, social struggles and “human” rights

69

Escobar, Arturo, “Mundos y conocimientos de otro modo. El programa de investigación de modernidad/colonialidad latinoamericano,” Tabula Rasa, Vol. 1, 2003, p. 51-86. Espinosa, Mónica, “El que entiende esa palabra, ¿de qué manera aprendió?,” Nómadas, Vol. 26, 2007, p. 138-153. Fanon, Frantz, Piel negra, máscaras blancas. Akal, Madrid 2009 [1967] / Fanon, Frantz, Black Skins White Masks. Grove Press, London 2009. Trans: Charles Lam Markman. Faverón Patriau, Gustavo, Rebeldes. Sublevaciones indígenas y naciones emergentes en Hispanoamérica en el siglo xviii. Tecnos, Madrid 2006. Fernández-Armesto, Felipe, 149, The Year When Our World Began. Harper-Collins, London 2009. Glendon, Mary Ann, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea,” Harvard Human Rights Journal, Vol. 16, 2003, p. 27-39. Gómez Rivas, León, “Economía y Guerra. El pensamiento económico y jurídico desde Vitoria a Grotio (y después),” Stud. his., H.a mod, Vol. 27, 2005, p. 135-159. Gonzá lez Casanova, Pablo, “Colonialismo interno. Una definición,” in América Latina. Historia y Destino. Homenaje a Leopoldo Zea. UNAM, México 1992. Gordon, Lewis, “African-American Philosophy, Race, and the Geography of Reason,” in Lewis R. Gordon and Jane Anna Gordon (eds.), Not Only the Master’s Tools: African-American Studies in Theory and Practice. Paradigm, Boulder and London 2006, p. 3-50. Gordon, Lewis, Disciplinary Decadence. Living Thought in Trying Times. Paradigm, Boulder and London 2006. Grosfoguel, Ramón, “A Decolonial Approach to Political-Economy: Transmodernity, Border Thinking and Global Coloniality,” Kult, Vol. 6, Special Issue, 2009, p. 10-38. Grosfoguel, Ramón, “Human Rights and Anti-Semitism after Gaza,” Human Architecture, Vol. 6(2), 2009, p. 89-102. Grosfoguel, Ramón and Santiago Castro-Gómez (eds.), Educación superior, interculturalidad y descolonización. PIEB, La Paz 2007. Guardiola-Rivera, Oscar, Being Against the World. Rebellion and Constitution. Birkbeck Law Press, New York 2009. Guardiola-Rivera, Oscar, What if Latin America Ruled the World? How the south will take the north into the 22nd century. Bloomsbury, London 2010. Hernández, Juan Antonio, “Marronage and Rebellion in the Hispano-American Caribbean,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburgh 2008, p. 569-573.

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Herrera Flores, Joaquín, Los derechos humanos como productos culturales. Crítica del humanismo abstracto. Catarata, Madrid 2005. Hesse, Barnor (2004): Im/Plausible Deniability. Racism’s Conceptual Double Bind. Social Identities 10(1), pp 11-29. Ishay, Micheline R., “Introduction. Human Rights. Historical and Contemporary Controversies,” in Micheline R. Ishay, The Human Rights Reader. Routledge, New York 2007, p. xi-xviii. Jackson, Michael, “Whose Human Rights?” in M. Jackson, Existential Anthropology. Events, Exigencies and Effects. Berghahn Books, New York 2005. Koskenniemi, Martti, “Colonization of the “Indies”. The origins of international law?,” in Y. Gamarra Chopo (ed.), La idea de América en el pensamiento ius internacionalista del siglo xxi. Universidad de Zaragoza 2010, p. 43-64. König, Hans Joakim, “Introducción” in Hans-Joachim König (ed.), El indio como sujeto y objeto de la historia latinoamericana. Pasado y presente. Iberoamericana, Madrid 1998, p. 13-34. Lander, Edgardo (ed.), La colonialidad del saber: eurocentrismo y ciencias sociales. Perspectivas latinoamericanas. CLACSO, Buenos Aires 2000. Las Casas, Bartolomé (n.d), Brevísima relación de la destrucción de las indias, [1552], Downloaded from http://www.ciudadseva.com/textos/otros/brevisi.htm (accessed January 2014). Lasso, Marixa, “Haití como símbolo republicano popular en el Caribe colombiano: Provincia de Cartagena (1811-1828),” Historia Caribe, Vol. 3(8), 2003, p. 5-18. Lasso, Marixa, “Race, War and Nation in Caribbean Gran Colombia. Cartagena 18101832,” American Historical Review, Apil 2006, p. 336-361. Lasso, Marixa, “Un mito republicano de armonía racial. Raza y patriotismo en Colombia 1810-1812,” Revista de Estudios Sociales, Vol. 27, 2007, p. 32-45. Lugones, Maria, “Heterosexualism and the Colonial /Modern Gender System,” Hypatia, Vol. 22(1), 2007, p. 186-209. Maestre Sánchez, Alfonso. “Todas las gentes del mundo son hombres. El gran debate entre Fray Bartolomé de las Casas (1474-1566) y Juan Ginés de Sepúlveda (14901573),” Anales del Seminario de Historia de la Filosofía, Vol. 21, 2004, p. 91-134. Maldonado-Torres, Nelson, “Sobre la colonialidad del ser. Contribuciones al desarrollo de un concepto,” in S. Castro-Gómez and R. Grosfoguel (eds.), El giro decolonial. Reflexiones para una diversidad epistémica más allá del capitalismo global. Siglo del Hombre, Bogotá, p. 127-168./ Maldonado-Torres, Nelson, “On the Coloniality of Being. Contributions to the development of a concept,” Cultural Studies, Vol. 21(23), 2007, p. 240-270. Maldonado-Torres, Nelson, Against War, Views from the Underside of Modernity. Duke University Press, Durham and London 2008.

r ace, social struggles and “human” rights

71

Mignolo, Walter D., Local Histories/Global Designs. Coloniality, Subaltern Knowledges, and Border Thinking. Princeton University Press, Princeton 2000. Mignolo, Walter D., The Idea of Latin America. Blackwell, Oxford 2005. Mignolo, Walter D., “Citizenship, Knowledge and the Limits of Humanity,” American Literary History, Vol. 18(2), 2006, p. 312-331. Mignolo, Walter D., “Who Speaks for the ‘Human’ in Human Rights?,” in A. Forcinito, R. Marrero-Fente, and K. McDonough (eds.), Human Rights in Latin American and Iberian Cultures. Hispanic Issues On Line, Vol. 5(1), 2009, p. 7–24. O’Gorman, Edmundo, La invención de América. Investigación acerca de la estructura histórica del nuevo mundo y del sentido de su devenir. Fondo de Cultura Económica, México 1991/1957. Quijano, Aníbal, “‘Raza’, ‘etnia’, y ‘nación’: cuestiones abiertas,” in R. Forgues (ed.), José Carlos Mariátegui y Europa: la otra cara del descubrimiento. Amauta, Lima 1992. Quijano, Aníbal, “Coloniality of Power, Ethnocentrism, and Latin America,” Nepantla, views from the South, Vol. 1(3), 2000, p. 533-580./ Quijano, Aníbal, “Colonialidad del poder, eurocentrismo y América Latina” in E. Lander (ed.), La colonialidad del saber: eurocentrismo y ciencias sociales. Perspectivas latinoamericanas. CLACSO, Buenos Aires 2000. Quijano, Aníbal, “Colonialidad del Poder y Clasificación Social,” Journal of worldsystems research, Vol. 4(2), 2000, p. 342-386. Rappaport, Joanne, Intercultural Utopias. Public Intellectuals, Cultural Experimentation and Ethnic Pluralism in Colombia. Duke University Press, Durham N.C. 2005. Rivera Cusicanqui, Silvia, Ch’ixinakax utxiwa. Una reflexión sobre prácticas y discursos descolonizadores. Tinta Limón, Buenos Aires 2010. Romero Jaramillo, Dolcey, “El fantasma de la revolución haitiana. Esclavitud y libertad en Cartagena de Indias 1812-1815,” Historia Caribe, Vol. 3(8), 2003, p. 19-33. Santiago-Valles, Kelvin, “‘Race,’ Labor, ‘Women’s Proper Place,’ and the Birth of Nations. Notes on Historicizing the Coloniality of Power,” New Centennial Review, Vol. 3(3), 2003, p. 47-68. Santos, Boaventura de Sousa, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. Routledge, London 1995. Santos, Boaventura de Sousa, “Three Methaphors for a New Conception of Law: The Frontier, the Baroque, and the South,” Law & Society Review, Vol. 29(4), 1995, p. 569-584. Santos, Boaventura de Sousa, “Toward a Muticultural Conception of Human Rights,” in B. E. Hernández-Truyol (ed.): Moral Imperialism. A Critical Anthology. New York University Press, NY and London 2000, p. 39-60. Santos, Boaventura de Sousa, “The Processes of Globalisation,” Revista Crítica de Ciências Sociais and Eurozine, 2002, p. 1-48.

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Santos, Boaventura de Sousa, “Between Prospero and Caliban: Colonialism, Postcolonialism, and Inter-Identity,” Luso-Brazilian Review, Vol. 39(2), 2002, p. 9-43. Santos, Boaventura de Sousa, Crítica de la razón indolente. Contra el desperdicio de la experiencia. Vol I. Desclée, Bilbao 2005 / Santos, Boaventura de Sousa, A Critique of Lazy Reason. Against the Waste of Experience. Downloaded from http://www. ces.uc.pt/bss/documentos/A%20critique%20of%20lazy%20reason.pdf (accessed January 2014). Santos, Boaventura de Sousa, “Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges,” Revista Crítica de Ciências Sociais and Eurozine, 2007, p. 1-35. Sepúlveda, Juan Ginés de, Tratado sobre las justas causas de la guerra contra los indios. FCE, México 1996 [approx 1550]. Silverblatt, Irene, Moon, Sun, and Witches. Gender Ideologies and Class in Inca and Colonial Peru. Princeton University Press, Princeton N.J. 1987. Stavehagen, Rodolfo, “Repensar América Latina desde la subalternidad: el desafio de Abya Alya,” in Rojas Aravena, Francisco y Andrea Á lvarez-Marín (eds.), América Latina y el Caribe: Globalización y conocimiento. Repensar las Ciencias Sociale., FLACSO – UNESCO, Montevideo 2011. Steiner, Henry J & Philip Alston, International Human Rights in Context. Law, Politics, Morals. Clarendon Press, Oxford 1996. Suárez-Krabbe, Julia, “Spanish Colonialism in a World Perspective” and “Postcoloniality and Alternative Histories: Latin America,” in P. Poddar, R. Patke and L. Jensen (eds.), A Historical Companion to Postcolonial Literatures: Continental Europe and its Empires. Edinburgh University Press, Edinburg 2008. Suárez-Krabbe, Julia, At the Pace of Cassiopeia. Being, Nonbeing, Human Rights and Development, PhD dissertation presented at the School of Intercultural Studies, Department of Culture and Identity, Roskilde University, 2011. Vitoria, Francisco de, Relecciones sobre los indios. El Búho, Bogotá [1539] 1981. Walsh, Catherine and García, Juan, “El pensar del emergente movimiento afroecuatoriano. Reflexiones (des)de un proceso” in D. Mato (ed.), Estudios y Otras Prácticas Intelectuales Latinoamericanas en Cultura y Pode. CLACSO, Consejo Latinoamericano de Ciencias Sociales, Caracas 2002, p. 317-326. Walsh, Catherine, “The Plurinational and Intercultural State: Decolonization and State Re-founding in Ecuador,” Kult, Vol. 6, 2008, p. 39-64. Wright, Shelley, International human rights, decolonisation and globalisation: becoming human. Routledge, London 2001. Wynter, Sylvia, “Unsettling the Coloniality of Being/Power/Truth/Freedom Towards the Human, After Man, Its Overrepresentation—An Argument,” New Centennial Review, Vol. 3(3), 2007, p. 257-337.

chapter 3

The Latin-American influence on European Human Rights Law Jonas Christoffersen

Introduction The Latin American influence on European human rights law is all too often forgotten or simply ignored. I argue in the following that Latin American human rights thinking has had a profound influence on European human rights law. Not in a direct, obvious and transparent manner, but in a rather indirect, subtle and covert manner through, in particular, the 1948 Universal Declaration on Human Rights. Through the Universal Declaration came to Europe a broad and holistic understanding of human rights and, with the broad perception of rights, the need to limit rights. The core of the matter is that European human rights law at the end of the Second World War was shaped by global human rights and hence essentially by Latin American ideals. We need to remember this heritage. In Europe, we are accustomed to observing that the idea of a European Convention on Human Rights and Fundamental Freedoms (ECHR) was launched on the first post-World War II conference of European Federalists in Herenstein on September 21, 1946. The conference called for a “Declaration of European Citizen Rights.”1 It was on that occasion Winston Churchill proclaimed: “We must build a kind of United States of Europe” and proposed the Council of Europe be established.2 Shortly after, the International Committee of Movements for European Unity convened the Congress of Europe in May

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Ludger Kühnhardt, “European Court and Human Rights”, in D. Greenberg, S. N. Katz, M. B. Oliviero and Sc. C. Wheatly (eds.), Constitutionalism and Democracy. Oxford University Press, Oxford and New York 1993, p. 128. Gordon L. Weil, The European Convention on Human Rights – Background, Development and Prospects, A. W. Sijthoff, Leiden 1963, p. 22.

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1948.3 The Hague Congress became a major turning point in European history as it sparked an unprecedented development of international cooperation in the field of economy and human rights.4 Only 12 months later on May 5, 1949, 10 European States signed the Statute of the Council of Europe, which – as a membership condition – requires respect of human rights.5 Merely 18 months later, the ECHR was signed on November 4, 1950 in the Great Hall of the Barberini Palace in Rome.6 However, we ignore the Latin-American heritage underpinning the European Human Rights Regime. To appreciate our Latin-American heritage, we need to engage with the drafting of the UN Charter as well as the Universal Declaration, just as we should take a closer look at the birth of the ECHR. No discussion of transatlantic human rights fertilization can ignore the LatinAmerican contribution to the development of the 1948 Universal Declaration of Human Rights and thus to the nature and scope of contemporary human rights law. The Latin-American heritage is far greater than commonly recognised, and we need to understand the Latin-American impact on global human rights law to fully appreciate the origins of contemporary, European and essentially global human rights law. In the following, I shall first show how the European Convention on Human Rights’ principle of proportionality doctrine grew out of the need to limit rights that originally were based on a limitation clause, which did not survive the negotiations of the ECHR. Next, I take a look at the broad LatinAmerica perception of human rights that has impacted the global understanding of rights, just as I shall highlight the inherent diversity of human rights that came to European human rights law. In a final section, I conclude the contribution. 3

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Jochen Abraham Frowein, “The European Convention on Human Rights as the Public Order of Europe”, Collected Courses of the Academy of European Law. Vol. I, Book 2, Martinus Nijhoff, Leiden and Boston 1990, p. 275; Donna Gomien, David Harris and Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter. Council of Europe, Strasbourg 1996, p. 11. W. Paul Gormley, The Procedural Status of the Individual before International and Supranational Tribunals. Martinus Nijhoff Publishers, The Hague 1966, p. 3. Statute of the Council of Europe Preamble and Article 1 (b), Article 3, Article 4, first sentence, Article 5, and Article 8. The original signatory parties were the Western European Countries of Belgium, Denmark, France, the Federal Republic of Germany, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, the Saar Government, Turkey and the United Kingdom. Sweden and Greece signed on November 28, 1950. Austria became member of the Council of Europe in April 1956 and signed the Convention on December 13, 1957.

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Europe The Latin-American contribution to global human rights is not widely recognised perhaps due in part to the lack of elaborate discussions during the postwar negotiations of human rights instruments of the role of proportionality as well as the rights and duties of individuals.7 This is key to the understanding of European human rights law as no single one principle is more important to European human rights law than the principle of proportionality.8 One of the most significant cornerstones in the negotiation of the ECHR is the Teitgen Report of September 5, 1949.9 Mr. Teitgen is regularly considered the father of the ECHR due to the tremendous impact of his work.10 The Teitgen Report reflects the discussions of the Committee on Legal and Administrative Questions under the Consultative Assembly. The general approach preferred by the Teitgen Report Committee clearly emerges from the following statement: On the preliminary question of the usefulness of … a collective guarantee, the Committee replied in the affirmative, considering that this guarantee would demonstrate clearly the common desire of the Member States to build a European Union in accordance with the principles of natural law, of humanism and of democracy. (Emphasis added)11 The Committee in line with this reasoning did not strictly define the rights and freedoms to be protected. It listed as an alternative twelve rights and freedoms referring to the provisions of the Universal Declaration of Human

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A. W. Brian Simpson, Human Rights and the End of Empire - Britain and the Genesis of the European Convention. Oxford University Press, Oxford and New York 2001, p. 73. See e.g. Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights. Martinus Nijhoff Publishers, Leiden and Boston 2009, Chapter 2. Report presented by M. Teitgen on behalf of the Committee on Legal and Administrative Questions on the establishment of a collective guarantee of essential Freedoms and Fundamental Rights (Council of Europe, Collected Edition of the “Travaux Préparatoires”. Vol. 1. The Council Strasbourg 1961, p. 101-107). Luzius Wildhaber, “A Constitutional Future for the European Court of Human Rights”, Human Rights Law Journal, 23, 2002, p. 161-165, (p.162). Council of Europe, Vol. 1, 1961, p. 101.

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Rights.12 In addition to listing the protected rights, the Teitgen Report laid down four general principles that remain pertinent to the ECHR and of which the general limitation clause in Article 6 deserves the most attention, because it introduced into the debate the concept of limiting rights elsewhere defined: Article 4 [Implementation freedom] Subject to the provisions laid down in Articles 5, 6 and 7, every Member State, signatory to the Convention, shall be entitled to establish the rules by which the guaranteed rights and freedoms shall be organised within its territory. Article 5 [Non-discrimination] The fundamental rights and freedoms enumerated … shall be guaranteed without any distinction based on race, colour, sex, language, religion, political or other opinion, national or social origin, affiliation to a national minority, fortune or birth. Article 6 [Limitations] In the exercise of these rights, and in the enjoyment of the freedoms guaranteed by the Convention, no limitations shall be imposed except those established by the law, with the sole object of ensuring the recognition and respect for the rights and freedoms of others, or with the purpose of satisfying the just requirements of public morality, order and security in a democratic society. Article 7 [Domestic effect and general principles of law] The object of this collective guarantee shall be to ensure that the laws of each state in which are embodied the guaranteed rights and freedoms as well as the application of these laws are in accordance with “the general principles of law as recognised by civilised nations” and referred to in Article 38 of the Statute of the International Court of Justice. (Words in brackets added).13

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On the Universal Declaration, see e.g. Johannes Morsink, The Universal Declaration of Human Rights – Origins, Drafting, and Intent. University of Pennsylvania Press, Philadelphia, Pennsylvania 1999, and Paul Gordon Lauren, The Evolution of International Human Rights – Visions Seen. University of Pennsylvania Press, Philadelphia, Pennsylvania 1998, p. 205-240. Council of Europe, Vol. 1, 1961, p. 105.

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The Teitgen Report’s general limitation clause in the Draft Article 6 was included in the Recommendation adopted by the Consultative Assembly on September 8, 194914 as well as in one of the alternative drafts proposed to the Committee of Ministers by the Committee of Experts on March 16, 1950.15 Yet, for reasons undisclosed by the preparatory works, the more elaborate draft, which was ultimately adopted, did not comprise a general limitation clause. The adopted draft, moreover, used the term “necessary” in a democratic society in various specific limitation clauses rather than the expression “just requirements”/”just demands” previously used.16 The well-known references to necessity in a democratic society had been introduced by the alternative draft presented by the British Government.17 The specific intention behind the introduction of necessity is not identifiable, apart from the general ambition of providing a closer definition of the protected rights and freedoms. The preparatory works do not provide any ground for thinking that limitation clauses should be constructed differently by reason of their specific or general nature.18 Despite the development of the negotiations, historical link between the Universal Declaration and the European Convention is evident as the possibility of limiting or restricting the rights and freedoms was essentially based on the wording of Article 29 § 2 of the Universal Declaration.19 The Universal Declaration of Human Rights of 1948 provides an important stepping-stone to a better understanding of the development of European Human Rights law. A mere rudimentary trace of Article 29 § 1 of the Universal Declaration is to be found in the European Convention on Human Rights’ statement that the exercise of the right to freedom of expression “carries with it duties and responsibilities”.20 While the emphasis on the duties and responsibilities is not prominent in the final version of the European Convention, the first im-

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Council of Europe, Vol. 1, 1961, p. 224. Council of Europe, Vol. 2, 1961, p. 511. Council of Europe, Vol. 2, 1961, p. 513-519. Council of Europe, Vol. 1, 1961, p. 516-19, and Simpson, 2001, p. 715. Council of Europe, Vol. 2, 1961, p. 650-651, and Simpson, 2001, p. 662 ff. P. Tavernier, “La déclaration universelle des droits de l’homme dans la jurisprudence de la cour européenne des droits de l’homme,” in Patrick Fontbressin, et al. (eds.), Les droits de l’homme au seuil du troisième millénaire – Mélanges en hommage à Pierre Lambert. Bruylant, Brussels 2000), p. 863. See similarly ICCPR Article 19 § 3 (Exercise of the freedom of expression “carries with it special duties and responsibilities.”).

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portant draft presented during the negotiation of the ECHR comprised a general limitation clause based on Article 29 § 2 of the Universal Declaration.21 It is now common knowledge that the institutions of the European Convention have worked hard to develop the legal, argumentative means to accommodate conflicting considerations. The early practice of the European Commission of Human Rights is characterised by a high degree of inductive reasoning that did not purport to outline more general constructions of the provisions that are now subject to the principle of proportionality. The Commission restricted itself to general references to the margin of appreciation or the considerable discretion available to the domestic authorities and resorted to statements, e.g. that the measure did not produce “undue, arbitrary or abusive effects”,22 that the domestic authorities must exercise their margin of appreciation in a non-discriminatory fashion,23 etc. The Commission observed in the 1970s that “balance and reasonableness” were relevant issues,24 but the Commission did not place the principle of proportionality at high value at the time.25 The Commission’s practice does not provide important insight into the development of the principle of proportionality. The Court, for its part, implicitly applied the principle of proportionality in its very first judgment in Lawless v. Ireland concerning a derogation from Article 5.26 The application of the principle of proportionality was made express in the Belgian Linguistic case when the Court declared that domestic regulation “must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention”. More generally, the Court said that the ECHR “implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human

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See Simpson, 2001, p. 650-662 for a description of the earliest drafts of the European Movement. X. v. the Federal Republic of Germany (April 13, 1961, Appl. no. 892/60, Yearbook 4, p. 240259). Société X., W. et Z. c. la Républic Fédérale d’Allemagne (dec.) (February 6, 1969, Appl. no. 2717/66, Receuil 29 p. 1-14) § 12. X. v. the United Kingdom (dec.) [PL] (July 18, 1974, Appl. no. 5712/72, Collection of Decisions 46 p. 112-117). Handyside v. the United Kingdom [PL] (September 30, 1975, Series B no. 22) § 147 and Ireland v. the United Kingdom [PL] (January 23, 1976, Series B no. 23) p. 128. Lawless v. Ireland (July 1, 1961, Series A no. 3) pp. 57-59 §§ 36-38. The Commission subsequently adopted the Court’s interpretation in X. v. Ireland (dec.) (July 27, 1961, Appl. no. 493/59, Yearbook 4, p. 302-323).

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rights while attaching particular importance to the latter”.27 The principle of proportionality received little immediate attention in legal doctrine28 and recourse to the principle was limited during the 1970s, but the Court relied on the principle of proportionality in Handyside v. the United Kingdom29 and Sunday Times v. the United Kingdom.30 The principle of proportionality was applied during the 1980s beyond Article 10,31 to Article 3,32 Article 4,33 Article 5,34 Article 11,35 as well as Article 8 in respect of transsexuals,36 the right to a home,37 expulsion of aliens,38 and the right of access to personal information.39 Finally, in Sporrong and Lönnroth v. Sweden, the Court claimed that the

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32 33 34 35 36 37 38 39

Belgian Linguistic case (merits) [PL] (July 23, 1968, Series A no. 6) p. 32 § 5. See also p. 34 § 10, p. 44 § 7 and pp. 50-51 § 13 in fine. The term “just balance” was later abandoned and replaced by the phrase “fair balance”. Exceptions are Karl Josef Partsch, Die Rechte und Freiheiten der europäischen Menschenrechtskonvention. Duncker and Humblot, Berlin 1966, p. 182, and Frede Castberg, La Convention europeenne des droits de l’homme et l’idee de justice, in Karel Vasak (ed.), Problémes de Protection Internationale des Droits de l’Homme - Amicorum Discipulorumque Liber René Cassin. Vol. 1, Pedone, Paris 1969, p. 30. Handyside v. the United Kingdom [PL] (December 7, 1976, Series A no. 24) § 49 and § 58. Sunday Times v. the United Kingdom [PL] (April 26, 1979, Series A no. 30) § 66 and § 67. See e.g. Carl Aage Nørgaard, Menneskerettighedskommissionens virke, Nordisk tidskrift for international ret . Vol. 50, 1981, p. 106-118, (p. 117). Freedom of expression was given “over-weight” (“overvægt”), but contrast e.g. Steven C. Greer, Public Interest in the European Convention on Human Rights . Council of Europe, Strasbourg 1995, and Steven C. Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights. Council of Europe, Strasbourg 1997. See Barthold v. Germany (March 25, 1985, Series A no. 90) § 58, Lingens v. Austria [PL] (July 8, 1986, Series A no. 103) § 47, and Barfod v. Denmark (February 22, 1989, Series A no. 149) § 29. Soering v. the United Kingdom [PL] (July 7, 1989, Series A no. 161) § 89 and § 110. Van der Mussele v. Belgium [PL] (November 23, 1983, Series A no. 70) § 37. Brogan and Others v. the United Kingdom [PL] (November 29, 1988, Series A no. 145-B) § 48. Young, James and Webster v. the United Kingdom [PL] (June 22, 1981, Series A no. 44) § 63 and § 65. Rees v. the United Kingdom (October 17, 1986, Series A no. 106) § 37. Gillow v. the United Kingdom (November 24, 1986, Series A no. 109) § 55. Berrehab v. the Netherlands (June 21, 1988, Series A no. 138) § 29. Gaskin v. the United Kingdom [PL] (July 7, 1989, Series A no. 160) § 42.

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search for a fair balance was inherent in the whole of the ECHR.40 The Court has ever since delivered thousands of judgments and decisions that seek exactly to define the breaking point between rights and their limitations. This mindset was developed by the Strasbourg institutions, but the Convention text and underlying thinking took their roots in the Universal Declaration.

Latin-America Digging further into the past to trace the roots of the European perspective on rights and duties of individuals, it should be recognised that the Universal Declaration’s link between the duties of individuals and the limitations on rights was heavily inspired by the American Declaration of the Rights and Duties of Man approved by the International Conference of American States in 1948.41 The development began with the post-World War II diplomatic negotiations in San Francisco concerning the creation of the UN Charter that was not originally focused on human rights obligations. The discussions by fifty states’ delegates in April 1945 on a proposed UN Charter had a more narrow perspective. The Latin American and Caribbean nations thus tabled an International bill of rights to be included in the UN Charter. Human rights were mentioned in the text, but a block of twenty Latin American delegates strongly pushed the human rights agenda. This should perhaps not be such a surprise as in 1938, when Europe was getting ready for war, the Inter-American conference had adopted the so-called “Lima-declaration in defence of human rights”, that included three declarations on women’s rights, condemnation of

40

41

Sporrong and Lönnroth v. Sweden [PL] (September 23, 1982, Series A no. 52) § 69. See also Rees v. the United Kingdom (October 17, 1986, Series A no. 106) § 37, Johnston and Others v. Ireland (December 18, 1986, Series A no. 122) § 72 (Article 8), Brogan and Others v. the United Kingdom [PL] (November 29, 1988, Series A no. 145-B) § 48 (Article 5), Soering v. the United Kingdom [PL] (July 7, 1989, Series A no. 161) § 89 (Article 3). The Bogotá Declaration highlights the duties of individuals in the preamble, Article 18 (scope of the rights of man) and Articles 29-38 (specific obligations). See also statement of essential human rights of 1945 Article 18, cf, The American Law Institute, The American Law Institute Seventy Fifth Anniversary 1923-1998. The American Law Institute, Philadelphia 1998, p. 288. On the origins of the Inter-American system, see e.g. José A. Cabranes, “The Protection of Human Rights by the Organization of American States”, American Journal of International Law, 62, 1968, p. 889-908.

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racial and religious persecution, as well as worker’s freedom of association thus providing the basis for the interrelatedness of different kinds of rights.42 In 1945, a meeting was held in Mexico with a view to including a “transitional declaration of rights” into the UN Charter, but it was at the San Francisco conference in 1945 that Panama tabled a declaration comprising e.g. rights to education, work, health care, and social security. The declaration was unsuccessful in the sense that it was not adopted, but other states, including the Philippines and Lebanon, as well as observers from Jewish, catholic and protestant groups, fought for a real commitment to human rights in the UN Charter. Civil associations and labour associations pushed the same agenda. The reaction from states varied. The United States were adopting a relaxed position perhaps hiding behind the European colonial powers that were strongly against human rights. The United Kingdom and France would have nothing of human rights (and both had their difficulties accepting the European Convention on human rights once that was adopted later the same decade). However in May 1945 the momentum changed. Pictures came out from the liberated concentration camps in Germany and Eastern Europe, just as the United States dropped its opposition against the Human Rights Commission. By June 1945 human rights principles were an essential part of the UN Charter mentioned as they are mentioned several times in the Charter.43 The Human Rights Commission chaired by Eleanor Roosevelt was assigned the task of establishing a kind of common yard stick of states. The Commission comprised eighteen members: three Latin-American members from Chile, Uruguay, and Panama, four eastern block members from the Soviet Union, Ukraine, Yugoslavia and Belarus, five western block members from Australia, Belgium, France, United Kingdom and the United States, three middle eastern members from Egypt, Iran and Lebanon as well as three Asian members from China, India and the Philippines. The discussion quickly moved to focus on the definition of human rights. The general principle of diversity was in play already then and it was no surprise that suggestions for a human rights bill were diverse in nature and content. Hence, when the director of the United Nations Human Rights division, the Canadian international lawyer John Humphrey, began to survey the world documents and drafts submitted to the United Nations, a variety of proposals were discovered. 42 43

“Declaration of Lima” by the Eighth International Conference of American States, December 24, 1938. Preamble and Articles 1, 13, 55, 68 and 76.

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The first drafts to be forwarded were presented by Chile, Panama and Cuba following up on the San Francisco initiative. John Humphrey studied the received material and took as his principal model the submissions received from Chile and Panama. The Panamanian draft was in its own right inspired by the American Law Institute study from 1942-43. This work had included experts from many nations and cultures and led to the “statement of essential human rights”. The Chilean draft was based on the Bogota-declaration of December 31, 1945 and its final version was the world’s first international human rights declaration adopted on April 30, 1948. It falls beyond the scope of the present contribution to map out the specific links between the Latin-America drafts on the one side and the Universal Declaration on Human Rights on the other side, but in his landmark work Johannes Morsink describes how Humphrey “took much of the wording and almost all of the ideas for the social, economic and cultural rights of his first draft from the tradition of Latin American socialist by way of the bills submitted by Panama … and Chile… It is impossible to overemphasize the importance of the fact that from the beginning the burden of proof was on those who wanted to delete certain articles. When those attempts were made, the Latin American delegates made sure that what Humphrey had put in stayed in.”44 One can today consider why the influence of drafts submitted by these Latin-American states was so strong. The broad cultural and philosophical appeal of the declaration meant that every part of the declaration had strong supporters and every suggestion for change met strong opposition. The draft presented by John Humphrey was so broad that it in effect placed the burden of argument on those who favoured changes meaning that all opposition to the first draft had to be convincing and could often be rejected as being of a technical nature or not receiving sufficiently broad support. On balance, everybody found something they liked and disliked in the declaration that could then either be rejected as such or adopted as such. It was adopted due to its strengths and despite its weaknesses. The point here is ultimately that the Universal Declaration and later the European Convention owe much to the Latin-American efforts after the Second World War.

44

Morsink, 1999, p. 131.

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Diversity The Latin-American emphasis on rights and obligations of individuals has inspired and had a significant impact on modern international human rights law which avoided the ideological trap of delimiting its scope to one or the other kind of rights. Rather than ideology, modern human rights law is fluid and adaptable to different circumstances. The legacy of the Universal Declaration can hardly be understood without account being taken of the general limitation clause in Article 29 § 2 of the Universal Declaration: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.45 The general limitation clause cannot be read in isolation of the provision on the duties of individuals in Article 29 § 1, “Everyone has duties to the community in which alone the free and full development of his personality is possible.” The fact that modern human rights law makes room for a negotiation of interests is a heritage of the Universal Declaration’s holistic approach to human rights that emerged from the Latin-American contributions. The Universal Declaration sparked the emergence of an unprecedented string of human rights treaties that need not be mentioned here and the broad focus on different kinds of rights was ultimately embraced by the international community in the 1993 Vienna Declaration, reaffirming the principle of diversity: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne 45

At one stage during the drafting of the Universal Declaration, the words “necessary to secure” were included in the text, but the drafters favoured the words “prescribed by law solely for the purpose of securing …”, see Erica-Irene A. Daes, Freedom of the Individual under Law – A Study of the Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights. United Nations, New York 1990, p. 72 § 40 and p. 74 § 57-62.

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in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (Emphasis added)46 Human rights are universal, but they are not uniform. The variation in human rights protection in different times and places does not mean, however, the human rights are incapable of travelling from time to time and place to place. The diversity of human rights law has been widely discussed, at least since the American Anthropologists’ famous rejection in June 1947 of the concept of universal human rights.47 This fear of uniformity overlooked the principle of diversity embedded in human rights law. Already in 1919 the Peace Treaty of Versailles had called upon the general principle of human rights diversity when the founders of the International Labour Organisation recognised: “differences of climate, habits, and customs, of economic opportunity and industrial tradition, make strict uniformity in the conditions of labour difficult of immediate attainment”. Further, it was said, there exist “methods and principles for regulating labour conditions which all industrial communities should endeavour to apply, so far as their special circumstances will permit.” 48 The diversity of human rights standards is today clearly recognised under the ECHR as its Court in Strasbourg has a long-standing tradition of accepting pluralism and diversity under the ECHR.49 The Court has recognised for a long time that the standards may vary according to the circumstances prevailing in different States.50 While the further realisation of human rights as 46

47 48 49

50

General Assembly, Vienna Declaration and Programme of Action, 1993, § 5. See e.g. Morten Kjærum, “Universal Human Rights: Between the Local and the Global”, in Kirsten Hastrup (ed.), Human Rights on Common Grounds, The Quest for Universality. Martinus Nijhoff Publishers, Leiden and Boston 2001, for an analysis of the arguments for and against uniformity respectively diversity. American Anthropologist, “Statement on Human Rights”, American Anthropologist. Vol. 49, 1947, p. 539-543. Peace Treaty of Versailles of June 28, 1919 Article 427. See e.g Kastanas, Unité et diversité. Bruylant, Bruxelles 1996; Aalt Willem Heringa, “The ‘Consensus Principle’ – The Role of ‘Common Law’ in the ECHR Case-Law”, Maastrict Journal of European and Comparative Law, 3, 1996, p. 108-145; and Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, Journal of International Law and Politics, 31, 1999, p. 843-854. See e.g.Mathieu-Mohin and Clerfayt v. Belgium [PL] (March 2, 1987, Series A no. 113) § 56, Vogt v. Germany [GC] (September 26, 1995, Series A no. 323) § 59, Rekvényi v. Hungary [GC] (May 20, 1999, ECHR 1999-III) § 47, Murphy v. Ireland (July 10, 2003, ECHR 2003-IX) § 38, Kyprianou v. Cyprus (January 27, 2004, Appl. no. 73797/01) § 84, Ilascu and Others v. Moldova and Russia [GC] (July 8, 2004, ECHR 2004-VII) § 411, Refah Partisi (The Welfare

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one of the methods available to achieve “greater unity” between the members of the Council of Europe, the ECHR does not advance legal integration by harmonisation of national human rights standards.51 The principle of diversity is expressly authorised by Article 56 § 3, which allows a Contracting Party to extend the ECHR to territories that a State is responsible for. The ECHR “shall be applied in such territories with due regard, however, to local requirements.” Far from being an exception to a general rule of uniformity, the provision enacts the general principle of diversity52 inherent in international human rights law53 as well as in other areas of international law.54 The diversity of human rights has a static and dynamic side: human rights may be different in different contexts, and human rights may become different if context changes. The dynamic and reconstructive element of human rights is perhaps most easily recognised when international human rights are implemented in national law, since few will dispute that the implementation of human rights brings about a change in content as a result of diverse local condition as well as institutional and constitutional structures.55 The implementation of international human rights in national law brings about a change that some talk of in terms of a transplant of law, but this phrase creates the wrong impression of an exchange that keeps the transplanted law intact and playing the same role in the new setting. Gunther Teubner has shown that the implemented law should be seen rather as a source of change, a legal irritant, leading to a reconstruction of both national law and international law:

51 52

53 54 55

Party) and Others v. Turkey [GC] (February 13, 2003, ECHR 2003-II) § 95, Leyla Sahin v. Turkey [GC] (November 10, 2005, ECHR 2005-XI) § 115, Jahn and Others v. Germany [GC] (January 22, 2004, ECHR 2005-VI) § 89, Melnychenko v. Ukraine (October 19, 2004, ECHR 2004-X) § 55, Py v. France (January 11, 2005, ECHR 2005-I) § 46. Christoffersen, 2009, p. 46. Compare Tyrer v. the United Kingdom (April 25, 1978, Series A no. 26) § 38 and Piermont v. France (April 27, 1995, Series A no. 314) § 59 with e.g. Dudgeon v. the United Kingdom [PL] (October 22, 1981, Series A no. 45) § 56. See also Py v. France (January 11, 2005, ECHR 2005-I) which considered a violation of the right to vote justified under Article 56 § 3. Henning Koch, “Legal Pluralism in the Human Rights Universe”, in Hastrup (ed.), 2001. Christopher Stone, “Common but Differentiated Responsibilities in International Law”, American Journal of International Law, Vol. 98, 2004, p. 276-302. Jens Elo Rytter, “Legal Integration British Style – The Impact of the ECHR on UK Law in a Danish Comparison”, in Agnete Weis Bentzon, Byrial Bjørst and Henning Koch (eds.), Retskulturer. Jurist- og Økonomforbundets Forlag, København 2002, p. 54.

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Legal irritants’ cannot be domesticated; they are not transformed from something alien into something familiar, not adopted to a new cultural context, rather they will unleash an evolutionary dynamic in which the external rule’s meaning will be reconstructed and the internal context will undergo fundamental change.56 In other words, neither the national nor the international norm remains unaffected by the interaction. The Swedish anthropologist Ulf Hannerz has used the term Creolization to describe the mutual and dual development of cultural interaction resulting in a change of local and central culture with the effect that both change. The term was originally developed in language study of Creole, which is an independent language formed at the interface between French and English. Similarly, different protection of the same human right may be the result of it being transplanted from one legal and social context to another. A well-known example in European human rights law is the independent and mutually exclusive interpretation of the protection against selfincrimination in the case-law of the courts in Luxembourg and Strasbourg.57 Of course, there are normative limits to the acceptable degree of diversity and Creolization of international human rights law as too great legal pluralism and diversity poses a threat to the effective protection of human rights.58 The point here is merely that different legal systems and institutions may protect the same right in different ways.

Conclusion The legal tradition today embedded in international human rights law could hardly have come about as smoothly as came to be the case had it not been for Latin-American philosophy and practice, just as the Vienna Programme of 1993 could hardly have been adopted if a more stringent and narrow approach

56 57

58

Gunther Teubner, “Legel Irritants - Good Faith in British Law or How Unifying Law Ends Up in New Divergences”, Modern Law Review, 61, 1998, p. 11-32, (p. 12). Jonas Christoffersen, “Retlig kreolisering - om selvinkriminering i dansk, europæisk og amerikansk menneskeret”, in Henning Koch and Anne Lise Kjær (eds.), Europæisk retskultur - på dansk (2004), Forlaget Thomson, København 2004. A. F. Bayefski, “Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies,” in Eugenio Bulygin, Burton M. Leiser and Mark van Hoecke (eds.), Changing Structures in Modern Legal Systems and the Legal State Ideology. Duncker and Humbolt, Berlin 1998.

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to human rights and obligations had been adopted in the aftermath of the Second World War. The holistic perspective has tremendous argumentative power perhaps as a consequence of the inherent link to ancient perceptions of justice as a balancing exercise. The symbol of balancing has roots at least back to the Ancient Greeks and Egyptians and stands today as one the strongest symbols of justice.59 The idea of what we today call human rights developed in different ways in different environments.60Modern human rights discourse places different emphasis on different aspects of human rights. The Universal Declaration is inspired by a broad focus on liberté, egalité et fraternité, whereas the text of the ECHR reflects a narrower rhetoric focusing primarily on liberté and egalité, but not nearly as directly on fraternité.61 The origin of limitation clauses may be considered European,62 but it should not be ignored that the general emphasis in the Universal Declaration on the duties of individuals is a consequence of the Latin-American delegates vigorously pursuing the insertion of a provision on the duties of individuals.63 The Latin-American delegations to international conferences in the aftermath of World War II brought these ancient ideas into the international human rights regime. The holistic view on human rights developed during post 59 60 61

62 63

Law Library Journal (1959) pp. 233-34, (1971) pp. 249-50, and (1980) pp. 744-46. See e.g. J. Carpentier, H. Hinke, R. Minerath, W. Schmale and J. Zaryn (eds.), Council of Europe: The Emergence of Human Rights in Europe. Council of Europe, Strasbourg 2001. The greatest emphasis on duties of individuals is found in Articles 27-29 of the African Charter on Human and Peoples’ Rights (1981). See e.g. Michelo Hansungule, “The African Charter on Human and Peoples Rights: A Critical Overview,” in African Yearbook of International Law, 2001, p. 265-331, (p. 292-294). Mary Ann Glendon, Rights Talk - The Impoverishment of Political Discourse. The Free Press, New York 1991, p. 36-37. Morsink, 1999, p. 239-40. For the Latin American influence on international human rights law, see e.g. Louis B. Sohn, “The Contribution of Latin American Lawyers to the Development of the United Nations Concept of Human Rights and Economic and Social Justice”, in Pedro Nikken (ed.), Modern World of Human Rights - Essays in Honour of Thomas Buergenthal. Inter-American Institute for Human Rights, San José 1996; P. G. Carozza, “From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights”, Human Rights Quarterly, 25, 2003, p. 281-313; and Mary Ann Glendon, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea”, Harvard Human Rights Journal, 16, 2003, 27-39. On the role of the Latin American drafts, see moreover Albert Verdoot, Naissance et Signification de la Déclaration Universelle des Droits de l’Homme. E. Warny, Louvain 1964, p. 265-70, and Daes, 1990, p. 70-77.

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World War II negotiations was based on Latin American philosophy that has roots back to the 16th century Spanish bishop Bartolomé de Las Casas, who condemned slavery and favoured indigenous peoples’ natural rights to liberty based on their membership of a common humanity. Bartolomé de Las Casas has rightly been called the “midwife of modern human rights law”.64 We owe more to Latin-American culture than we normally recognise.

Literature and References American Anthropologist, “Statement on Human Rights,” American Anthropologist, Vol. 49, 1947, p. 539-543. American Law Institute, The, The American Law Institute Seventy Fifth Anniversary 1923-1998. The American Law Institute, Philadelphia 1998. Bayefski, A. F., “Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies,” in Eugenio Bulygin, Burton M. Leiser and Mark van Hoecke (eds.), Changing Structures in Modern Legal Systems and the Legal State Ideology, Duncker and Humblot, Berlin 1998. Benvenisti, Eyal, “Margin of Appreciation, Consensus, and Universal Standards,” Journal of International Law and Politics, Vol. 31, 1999, p. 843-854. Cabranes, José A.,” The Protection of Human Rights by the Organization of American States,” American Journal of International Law, Vol. 62, 1968, p. 889-908. Carozza, P. G., “From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights,” Human Rights Quarterly, Vol. 25, No. 2, 2003, p. 281-313. Carpentier, J., H. Hinke, R. Minerath, W. Schmale and J. Zaryn (eds.), The Emergence of Human Rights in Europe, Council of Europe, Strasbourg 2001. Castberg, Frede, «La Convention europeenne des droits de l’homme et l’idee de justice,» in Karel Vasak (ed.), Problémes de Protection Internationale des Droits de l’Homme – Amicorum Discipulorumque Liber René Cassin, Pedone, Paris, Vol. 1, 1969. Christoffersen, Jonas, “Retlig kreolisering - om selvinkriminering i dansk, europæisk og amerikansk menneskeret”, in Henning Koch and Anne Lise Kjær (eds.), Europæisk retskultur – på dansk, Forlaget Thomson, København 2004. Christoffersen, Jonas, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights, Martinus Nijhoff Publishers, Leiden and Boston 2009.

64

Carozza, 2003, p. 281-313, and Glendon, 2003, p. 32.

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Council of Europe, Collected Edition of the “Travaux Préparatoires”, Vol. 1, The Council, Strasbourg 1961. Daes, Erica-Irene A., Freedom of the Individual under Law – A Study of the Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights. United Nations, New York 1990. Frowein, Jochen Abraham, “The European Convention on Human Rights as the Public Order of Europe,” in Collected Courses of the Academy of European Law. Vol. I, Book 2. Martinus Nijhoff Publishers, Leiden and Boston 1990. Glendon, Mary Ann, Rights Talk – The Impoverishment of Political Discourse. The Free Press, New York 1991. Glendon, Mary Ann, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea,” Harvard Human Rights Journal, Vol. 16, 2003, p. 27-39. Gomien, Donna; David Harris and Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, Council of Europe, Strasbourg 1996. Gormley, W. Paul, The Procedural Status of the Individual before International and Supranational Tribunals. Martinus Nijhoff Publishers, The Hague 1966. Greer, Steven C., Public Interests and Human Rights in the European Convention on Human Rights. Council of Europe, Strasbourg 1995. Greer, Steven C., The Exceptions to Articles 8 to 11 of the European Convention on Human Rights. Council of Europe, Strasbourg 1997. Hansungule, Michelo, “The African Charter on Human and Peoples Rights: A Critical Overview,” in African Yearbook of International Law, 2001, p. 265-331. Heringa, Aalt Willem, “The ‘Consensus Principle’ – The Role of ‘Common Law’ in the ECHR Case-Law,” 3 Maastrict Journal of European and Comparative Law, 3, 1996, p. 108-145. Kastanas, Elias, Unité et diversité. Bruylant, Bruxelles 1996. Koch, Henning, “Legal Pluralism in the Human Rights Universe,” in Kirsten Hastrup (ed.), Human Rights on Common Ground: The Quest for Universality. Martinus Nijhoff Publishers, Leiden and Boston 2001. Kjærum, Morten, “Universal Human Rights: Between the Local and the Global,” in Kirsten Hastrup (ed.), Human Rights on Common Grounds: The Quest for Universality. Martinus Nijhoff Publishers, Leiden and Boston 2001. Kühnhardt, Ludger, “European Court and Human Rights,” in D. Greenberg, S. N. Katz, M. B. Oliviero and S. C. Wheatley (eds.), Constitutionalism and Democracy. Oxford University Press, Oxorfd and New York 1993. Lauren, Paul Gordon, The Evolution of International Human Rights – Visions Seen. University of Pennsylvania Press, Philadelphia, Pennsylvania 1998.

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Morsink, Johannes, The Universal Declaration of Human Rights – Origins, Drafting and Intent. University of Pennsylvania Press, Philadelphia, Pennsylvania 1999. Nørgaard, Carl Aage, “Menneskerettighedskommissionens virke,” Nordisk tidskrift for international ret. Vol. 50, 1981, p. 106-118. Partsch, Karl Josef, Die Rechte und Freiheiten der europäischen Menschenrechtskonvention. Duncker und Humblot, Berlin 1966. Rytter, Jens Elo, “Legal Integration British Style – The Impact of the ECHR on UK Law in a Danish Comparison,” in Agnete Weis Bentzon, Byrial Bjørst and Henning Koch (eds.) Retskulturer, Jurist – og Økonomforbundets Forlag, København 2002, p. 51-63. Simpson, A. W. Brian, Human Rights and the End of Empire – Britain and the Genesis of the European Convention. Oxford University Press, Oxford and New York 2001. Sohn, Louis B. “The Contribution of Latin American Lawyers to the Development of the United Nations Concept of Human Rights and Economic and Social Justice,” in Nikken, Pedro (ed.), Modern World of Human Rights – Essays in Honour of Thomas Buergenthal, Inter-American Institute for Human Rights, San José 1996. Stone, Christopher, “Common but Differentiated Responsibilities in International Law,” American Journal of International Law, Vol. 98, 2004, p. 276-302. Tavernier, P. «La déclaration universelle des droits de l’homme dans la jurisprudence de la cour européenne des droits de l’homme,» in Patrick de Fontbressin, et al. (eds.), Les droits de l’homme au seuil du troisième millénaire – Mélanges en hommage à Pierre Lambert. Bruylant, Brussels 2000. Teubner, Gunther, “Legel Irritants – Good Faith in British Law or How Unifying Law Ends Up in New Divergences,” Modern Law Review, Vol. 61, May 1998, p. 11-32. Verdoot, Albert, Naissance et Signification de la Déclaration Universelle des Droits de l’Homme. E. Warny, Louvain 1964. Weil, Gordon L., The European Convention on Human Rights – Background, Development and Prospects. A. W. Sijthoff, Leiden 1963. Wildhaber, Luzius, “A Constitutional Future for the European Court of Human Rights,” Human Rights Law Journal, 23, 2002, p. 161-165.

chapter 4

The Jamaican Broker: UN Diplomacy and the Transformation of International Human Rights, 1962-1968 Steven L. B. Jensen

The Caribbean area is a perfect case study for a number of things. If one wants to study the end products of imperialism, this is the perfect region to study. If one wants to know the effect on most of the depressed areas, this is the place to look. If one wants to study the difficulties of establishing a democratic political system, the Caribbean area will show one. Few areas are better subjects of study. norma n ma nley, 19541

Introduction Jamaica was the driving force in the breakthrough for human rights internationally, which took place during the 1960s. It was through a remarkable vision for a different international legal and political order and skillful diplomatic efforts that Jamaica came to play this prominent role. Jamaica was second to none in the UN human rights diplomacy of the 1960s and was the main broker of progress when human rights emerged – at the crossroads between the Cold War and decolonization – as international law with binding obligations on states that laid the foundations for the much better known human rights developments in the 1970s. Jamaica has had a profound, enduring and until now unacknowledged effect on the emergence of international human rights. It is a legacy that is worth understanding in greater detail.2 1

2

Quoted in Robert J. Alexander (ed.), “Conversation with Norman Manley in New York City, March 16, 1954”, Presidents, Prime Ministers and Governors of the English-Speaking Caribbean and Puerto Rico: Conversations and Correspondance. Praeger Publishers, Westport, CT, 1997, p. 20. The research presented in this chapter forms part of a larger body of work re-assessing the emergence and trajectory of human rights in international affairs during the Cold War era. See Steven L. B. Jensen, Negotiating Universality: The Making of International Human Rights, 1945-1993. Unpublished PhD dissertation, University of Copenhagen, 2013.

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Jamaica’s approach was based on a vision that was nurtured by the country’s often conflicted historical past and the protracted constitutional moment that saw Jamaica move from colonial rule via adult suffrage and selfgovernment into independence during the period from 1938-1962. It was also a vision that entered the international arena in the shadow of the 1962 Cuban missile crisis and in the midst of the Cold War bipolar sovereignty disorder that had effectively closed down the human rights project that had come into existence during the 1940s with the creation of the United Nations. In 1964, Jamaica became the first country to make human rights an explicit part of its foreign policy strategy with human rights goals and outcomes.3 The Jamaican strategy articulated the agenda that the country was pursuing as part of its multilateral diplomacy and increasingly beyond. The efforts culminated in 1968 with the UN International Year for Human Rights, which was a Jamaican invention. The wider impact of decolonization on the rise of human rights in international affairs has been the subject of increased scholarly attention and has resulted in interesting new findings.4 In this context, the Jamaica story is certainly of interest as its independence was obtained at the same time as decolonization swept across Africa and Asia, changing the composition of the United Nations dramatically. However, in the broader context of understanding the emergence of human rights, this story is also relevant. The developments in the 1960s have been overlooked in the human rights historiography. The focus has mainly been on the 1940s and the early rise of human rights with the development of the Universal Declaration of Human Rights. More recently, the 1970s has emerged as the other period at the center of attention for human rights history.5 This deserves a re-assessment. 3

4

5

DO 200/182, “The Foreign Policy of Jamaica”, British National Archives, London June 1964. The Jamaican strategy e.g. predates with about 13 years the efforts of the Carter Administration to integrate human rights in US foreign policy. See David F. Schmitz and Vanessa Walker, “Jimmy Carter and the Foreign Policy of Human Rights: The Development of a Post-Cold War Foreign Policy”, Diplomatic History, vol. 28, no. 1, 2004, p. 113-143; Barbara Keys, Reclaiming American Virtue. The Human Rights Revolution of the 1970s. Harvard University Press, Cambridge, MA, 2014. Roland Burke, Decolonization and the Emergence of International Human Rights, University of Pennsylvania Press, Philadelphia 2010; Daniel J. Whelan, Indivisible Human Rights. University of Pennsylvania Press, Philadelphia 2010; Fabian Klose, Human Rights in the Shadow of Colonial Violence. The Wars of Independence in Kenya and Algeria. University of Pennsylvania Press, Philadelphia 2013. See Samuel Moyn, The Last Utopia. Human Rights in History. Harvard University Press, Cambridge, MA 2010; Michael Cotey Morgan, “The Seventies and the Rebirth of Human

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There are obvious reasons for the focus on the 1940s and the 1970s. The 1940s saw the development of the milestone document that shaped the field. The 1970s saw the global embrace of human rights by numerous international and national NGOs combined with new technological possibilities for an ever more globalizing media sector to stimulate a wider interest in human rights issues. In response to the human rights breakthrough in the 1970s, it is important to emphasize that while it is significant that international NGOs advocate and media globally disseminate news and features on human rights, it is equally significant when states negotiate – in this case several binding human rights treaties – and conclude them. On the latter point, there was a definite breakthrough in the 1960s. It was a breakthrough that occurred rapidly. As late as July 1963 a legal advisor in the US State Department would write the following assessment about the Commission on Human Rights and its “prolonged effort expended on human rights covenants which may never be completed and which, if completed, may never be widely ratified as treaties”.6 Three years later, by the end of 1966, three major human rights treaties were completed with ratifications already having occurred for the Convention on Racial Discrimination that was completed in December 1965.7 It was this Convention and the race issue in itself that enabled the breakthrough for completion of the two Covenants that by then had been under way for 18 years. Until the early 1960s the Universal Declaration on Human Rights had only had limited importance. There was, however, one area in which the Universal Declaration was playing a concrete role. It had become an important source of inspiration in the drafting of Constitutions in newly emerging states. By the early 1960s the Declaration had been applied in the drafting of constitutions in more than 20 African countries.8 By 1962, as the UN human rights

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Rights”, Niall Ferguson, Charles S. Maier, Erez Manela and Daniel J. Sargent (eds.), The Shock of the Global. The 1970s in Perspective. Harvard University Press, Cambridge, MA, 2010, p. 237-250; Akira Iriye, Petra Goedde and William I. Hitchcock, The Human Rights Revolution: An International History. Oxford University Press, New York 2012; Jan Eckel and Samuel Moyn, The Breakthrough: Human Rights in the 1970s. University of Pennsylvania Press, Philadelphia 2013. Document 258: “Memorandum From the Deputy Legal Advisor of the Department of State (Meeker) to the Assistant Secretary of State for International Organization Affairs (Cleveland)”, July 16, 1963, Foreign Relations of the United States, 1961-1963, Vol. XXV, p. 573. The first ratifications happened during 1966 in the following order Bulgaria, Ghana, Pakistan and Ecuador. Egon Schwelb, Human Rights and the International Community. Quadrangle Books, Chicago 1963, p. 51.

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project still floundered, there was a lesson to be learned from this development: Human rights were coming in from the South.

From Colony to Independence – Jamaica 1938-1962 The political transformations that led to Jamaican independence played a significant role in shaping their vision of international relations in an era of decolonization with many new states entering the international system. The country underwent a protracted constitutional moment that moved the country through a process of political reform starting with widespread labor riots in 1938 and culminating with independence in August 1962. The labor riots in 1938 which saw 14 killed and many more injured from gunshots were a turning point in Jamaican history. It was the birth moment for the modern Jamaica. The 1938 labour riots saw the birth of two political parties with affiliated trade union movements as part of their political base. The two parties – the Jamaica Labour Party and the People’s National Party – became the dominant parties in Jamaican politics from the 1940s and remain so today. The political rivalry between the respective leaders Alexander Bustamente and Norman Manley, who were the founders of the parties in the early 1940s and remained as leaders until the late 1960s defined the direction the country would take. They were rivals to the role as father of the nation. They were also half cousins and of mixed race – and had initially been closely associated in the immediate aftermath of the 1938 riots when Manley, a distinguished lawyer, secured Bustamente’s release from prison as the British had detained him for political reasons. The outbreak of the Second World War placed the Caribbean in an international security context from which local politics could benefit. In November 1944, universal adult suffrage was introduced through a new constitution that secured political democracy with limited self-government under continued British rule. An election was called which Bustamente and the JLP won. Importantly, this election introduced a two-party system where government and opposition roles would move back and forth between the two parties. During the years that followed – and especially in the 1950s – wider self-government would be introduced through several constitutional changes. Upon achieving independence, Jamaica had a well-functioning two-party system, a relatively well-functioning system of government and civil service where Jamaican-born persons had played an increasing role. The country also had a well-established legal tradition and system – at least partly inherited

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from the British – and had also gained experience in international politics and in dealing with national, regional and global interests between the British and the Americans. Furthermore, Jamaicans had historically played a significant role in global race politics including the creation of Pan-Africanism at the beginning of the 20th century. There was also a transnational dimension to Jamaican politics as the Harlem Renaissance of the 1930s had important contributions from the Caribbean diaspora living in the United States. These US-based groupings would mobilize for the cause of Jamaican self-government and independence.9 In terms of human rights, the Jamaicans readily engaged at the United Nations on the broad specter of rights whether it was civil, political, economic or social rights or specific issues such as race and religion. Norman Manley himself was from 1954 involved with one of the few international human rights NGOs then in existence – The International League for the Rights of Man – and later joined their Advisory Council. The combination of being a colony and a construction of empire with an often violent history and a relatively well-prepared and progressive path to independence may have put Jamaica in a unique place to be a human rights broker on the international scene.10 In the late 1950s and early 1960s an American sociologist, Wendell Bell, studied in detail the values and attitudes of the leaders in Jamaica. Wendell Bell surveyed and interviewed politicians, leading civil servants and other elite groups. In a comprehensive study Bell asked them “What should Jamaica’s global alignments be?” He contrasted the United States and the Soviet Union as expressions of allegiance in the Cold War and asked which of the two superpowers the respondent “feel has been morally right more often in recent years”. Out of 188 respondents, 83% said the United States, 1% answered the Soviet Union and 16% about the same. The reasons given were 9

10

Birte Timm, “Caribbean Leaven in the American Loaf: Wilfred A. Domingo, the Jamaican Progressive League and the Founding of a Decolonization Movement for Jamaica”, German Historical Bulletin, Supplement 5, 2008, p. 81-97. I have left out the domestic developments in Jamaica after independence where frustrations soon grew over the conditions of international trade, aid and that Jamaica’s Western allegiance and stance over Cuba did not provide greater dividends for economic development. The economic growth and social development did not continue in the 1960s and the 1970s and the violent trends in Jamaican politics returned. In the 1980 election 750 people were killed in election related violence. See Anita Waters, “Half the Story – the Uses of History in Jamaican Political Discourse”, Caribbean Quarterly, Vol. 45:1, 1999, p. 71. Jamaica’s own human rights record has also been frequently criticized over the last decades. This context is important to keep in mind but is not part of this study.

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based on commitment to the principles of democracy, fear and hatred of Soviet methods and suspicion of Soviet motives.11 There were qualifications to some responses and they focused on racial policies and McCarthyism. Cases of discrimination and racial attacks in the United States were widely reported in the Jamaican media. Bell also asked which of the two superpowers was “more effective in winning over to its point of view the people living in the so-called underdeveloped countries of the world?”. The responses were that 56% believed the Soviet Union was most effective, 24% believed that the United States was more effective and 20% about the same. The results highlighted a tension between political allegiance and political effectiveness among the new states that had wider ramifications in the context of the global Cold War. The Jamaican respondents focused on the possibilities of achieving both political freedom and economic advancement at the same time. They focused on the Soviet’s ability to capitalize on people’s despair in underdeveloped countries and the forceful Soviet propaganda on poverty-stricken peoples. The responses rarely reflected an endorsement of the Soviet Union’s approach – there were few illusions among the respondents about what it meant in terms of “false promises of utopia”. With these responses in mind, it is of little surprise that in February 1963 Hugh Shearer announced that the official government of Jamaica was opposed to communism and firmly aligned with the West. This alignment had carried Jamaica into independence and was apparent during the Cuban Missile Crisis only a few months earlier. Wendell Bell concluded his study attempting some predictions on “Jamaica’s precarious future”. He saw both potential and threats on the horizon. The latter focused on disillusionment with the pace of social reform and with cynicism about political democracy itself. It could lead to social crisis and a restriction on the rights of part of the population. Bell, however, also saw great potential and he believed that Jamaica may actually take: … the lead among the new nations in seeking the welfare of humanity as a whole… It is possible that Jamaica can become a symbol to the world, to the developed and underdeveloped, to the committed and uncommitted nations alike… Jamaica could prove to the world… that a nation can be concerned not just with its own welfare, but with the welfare of all people everywhere; and that a nation can put humanity even above its own newly won national sovereignty. In sum, Jamaica could prove 11

Wendell Bell, Jamaican Leaders. Political Attitudes in a New Nation. University of California Press, Berkeley 1964, p. 152.

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that some key ideas underlying Western thought still have vigor and meaning, that a belief in progress, reason, and the perfectibility of man carries with it a force that can help make the vision of a “better world” come true.12 It was a very idealistic assessment of Jamaica’s potential role in international affairs in the post-colonial era but as later developments would show it was not without some merit.

The Turning Point, 1962 Jamaica had only been a member of the United Nations for three weeks when it gave its first speech to the General Assembly on October 8, 1962. The speech, delivered by the newly appointed Government minister Hugh Shearer, focused on the threats of the nuclear arms race calling it “the most momentous and urgent of all our problems”. Speaking in October 1962 this was a timely point of concern from a country located close to Cuba. It was evident that the escalating crisis in the Caribbean served as a formative context for Jamaica’s first speech to the United Nations General Assembly. Shearer continued by focusing on the need for a nuclear test ban agreement and then went on to talk about aid, international investments and trade. As he reached the end Minister Shearer would call for the United Nations to address “one of the great unsolved problems of this age… the transformation into actual practice of the democratic ideal of fundamental concern for individual rights”.13 Based on the provisions of the UN Charter it was tantamount, Jamaica believed, for the organization to intensify its efforts on human rights to find peaceful solutions to the many problems faced by the international community. As an immediate step Jamaica called for the creation of an international human rights year with a world-wide collaborative effort to revitalize interest and “seek co-operative methods of curing the denial of human rights whenever and wherever such a condition persists”.14 International law should serve as a response to the Cold War crisis that with the Cuban crisis was placing the Caribbean at the center of global politics.

12 13 14

Bell, 1964, p. 172-173. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 17th Session, General Debate, 1145th Plenary Meeting, October 8, 1962, p. 378. Speech by Mr. Hugh Shearer (Jamaica), October 8, 1962, p. 378.

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The initial breakthrough for human rights happened at this 1962 General Assembly.15 After a prolonged debate in the General Assembly’s Third Committee it was decided that the United Nations should develop a Declaration and a Convention against Racial Discrimination and a Declaration and Convention on the Elimination of Religious Intolerance. This was a brand new development for a human rights program that for 14 years had focused on and failed in preparing the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights that together with the Universal Declaration on Human Rights would represent the International Bill of Rights. In light of this ongoing diplomatic and political failure, the issues of race and religion would serve as catalysts to rescue the international human rights project. On October 29, 1962 the Third Committee started debating an agenda item on “Manifestations of racial prejudice and national and religious intolerance”. It had been on the agenda of the 1961 General Assembly session but had not received any attention. At the last moment a resolution ensured that the item would survive and be addressed at the 1962 General Assembly session.16 Here, it would take center stage in reviving the UN human rights work. The agenda item had emerged in response to several attacks of an antiSemitic nature in different European countries in 1959 and 1960. However, the 1962 debate was shaped by new member states, especially from Africa. A resolution was presented that proposed the drafting of an international convention on elimination of racial discrimination.17 This was a new direction for the human rights programme and one that rapidly mobilized support. Two days after the debate had started the revised resolution had 32 co-sponsors. It was now proposed to first draft a declaration that should be ready for discussion at the 1963 General Assembly session followed immediately by a convention.18 15

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The broader context and developments of the 1960s UN human rights diplomacy is elaborated in Steven L. B. Jensen, “‘Universality should govern our small world of today’: The Cold War and UN Human Rights Diplomacy 1960-1968”, in Rasmus Mariager, Karl Molin and Kjersti Brathagen (eds.), Human Rights in Europe During the Cold War. Routledge, London 2014. See Resolution 1684, UN General Assembly, 16th Session. A/C.3/L.1006: Draft resolution “Preparation of an international convention on the elimination of racial discrimination”, October 25, 1962. It was proposed by the following 9 African states Central African Republic, Chad, Dahomey (Benin), Guinea, Ivory Coast, Mali, Mauritania, Niger and Upper Volta (Burkina Faso). A/C.3/L.1006/Rev. 5: Revised draft resolution ““Preparation of a declaration and an international convention on the elimination of racial discrimination”, October 31, 1962.

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It is evident from the debate that there was a widespread dissatisfaction with the impact of the Cold War on international relations and attempts were made to situate this debate outside the realm of the Cold War logic. Instead there was a longer historical tradition of racial discrimination and the legacies of colonialism that many states wanted to confront. As stated by Senegal “Racial discrimination was still the rule in the African colonial territories and in South Africa, and was not unknown in other parts of the world”, and while Senegal regarded itself as being in the front line of attacking discrimination wherever it occurred, “The time had come to bring all States into that struggle, and in that regard a convention on the elimination of racial discrimination would be of the greatest usefulness”.19 There was a great belief that international law could be an important instrument in creating what the Ghanaian delegate called “a world-wide psychological climate in which all men could go about their business freely, unimpeded by past fears and hatreds”.20 The proposal was complemented by a resolution from Liberia that called for a declaration and an international convention on elimination of religious intolerance. Both resolutions were adopted but instead of distancing the human rights project from the cold war divisions, it was in many ways renewed with racial discrimination and religious intolerance being the battlegrounds between the two blocks. This substituted the battles over civil and political versus economic, social and cultural rights. It was a process in which the Third World was a driving force. By 1965, the convention on elimination of racial discrimination was finalized and it was the instrument that set a new precedent and created the breakthrough for the wider human rights efforts. It had transcended the barrier between national sovereignty and international human rights law. This happened in parallel to the process initiated by Jamaica and they would mutually benefit each other.

The Jamaican Broker, 1963-1967 At the 1963 General Assembly session, Jamaica decided to give shape to the idea of a human rights year and take it further. The first step was to ensure that the proposal was included as an additional item on the agenda for the 1963 General Assembly session. Jamaica prepared an explanatory memoran19 20

Statement by Mr. Kane (Senegal), UN General Assembly, 17th Session, Official Records, Third Committee 1167th Meeting, October 30, 1962, p. 168. Statement by Mr. Dadzie (Senegal), UN General Assembly, 17th Session, Official Records, Third Committee 1168th Meeting, October 31, 1962, p. 173.

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dum and a draft resolution to secure this.21 The agenda item was adopted and reverted to the Third Committee where Jamaica could pursue the issue and secure support for its draft resolution. In his 1963 speech to the General Assembly, Hugh Shearer took the opportunity to advocate for his government’s proposal. He started his speech by referring to “one of the gravest crises since the Second World War… which hung over the proceedings of our previous session”. The Cuban Missile Crisis had loomed large over Jamaica’s entry into international affairs and over the 17th Session of the General Assembly in 1962 that took place in the shadow of the crisis. He now addressed the wider strategic implications of the nuclear threat on the values of the international state system: Often in the history of nations and civilizations a whole generation lives out its little life by the rules and standards of a bygone age, oblivious of the fact that the current of history and the march of ideas have passed it by. Let it not be said that in this generation one nation continued to dispute with the other about areas of national sovereignty, about means of protecting national security, ignorant of the fact that the hydrogen bomb has eliminated the resort to force as a means of settling international disagreements.22 From the perspective of the Jamaican Government the current of history pointed towards overcoming national sovereignty and the march of ideas certainly involved human rights becoming binding agreements between states. The issue of human rights was starting to look like the means to secure both détente and social justice. By proposing the designation of 1968 as human rights year Jamaica had two elements in mind. The first element was that the International Human Rights Year should be an event to bring focus on human rights. The second element was that 1968 should be a target for progress and accountability in the field of human rights.23 The Jamaican proposal signified a brand new approach. A five year preparation period could provide a comprehensive program of work 21

22 23

A/5493/Add.1, Explanatory Memorandum, United Nations General Assembly, Official Records, “Agenda item 79: Designation of 1968 as International Year for Human Rights”, Annexes, 18th Session, 1963, p. 2. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 18th Session, General Debate, 1228th Plenary Meeting, October 4, 1963, p. 1. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 18th Session, General Debate, 1228th Plenary Meeting, October 4, 1963, p. 3.

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and a much more strategic elaboration of human rights within the United Nations. The frequent ceremonial and denialist rhetoric of many of the UN human rights debates could be challenged in new ways if the idea of a target and a more structured approach was endorsed. Jamaica’s speech to the 1963 General Assembly added a new concrete proposal to the idea of an International Human Rights Year. Jamaica proposed that an international conference on human rights should be organized in 1968 for all member states to attend. It would become the first world conference on human rights.24 Recognizing the momentum behind the race issue, and speaking only five weeks after the march on Washington where Martin Luther King Jr. had expressed his dream of racial reconciliation, Hugh Shearer provided concrete examples of what the international conference should address. The: … delegations to that conference would report on the advances made in their own countries in eliminating particular denials of human rights in whatever form and by whatever name – apartheid, segregation, Jim Crow, or colour prejudice.25 It was the responsibility of the Jamaican Ambassador to the United Nations, Egerton Richardson to ensure backing for their resolution that would secure the formal endorsement of 1968 as the international human rights year. By December 1963 when the item was debated in the Third Committee, Ambassador Richardson had secured endorsement from 18 other countries that cosponsored the draft resolution.26

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This is the first proposal for what became the “First International Conference on Human Rights”. It was held in Teheran over a 3-week period in April-May 1968. See below. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 18th Session, General Debate, 1228th Plenary Meeting, October 4, 1963, p. 3. Other issues proposed were slavery, condition of refugees and right of asylum. The Explanatory Memorandum had also made reference to Freedom of Information. The countries co-sponsoring with Jamaica were Afghanistan, Argentina, Brazil, Costa Rica, El Salvador, Ecuador, Ghana, Guatemala, India, Iraq, Italy, Ivory Coast, Liberia, Nigeria, Saudi Arabia, Trinidad and Tobago, Uganda and Uruguay. The countries that sponsored the resolution were: 7 Latin American countries, 5 African countries, 2 Arab countries, 2 Caribbean countries, 2 Asian and 1 European. See UN Library Geneva, A/5660, UN General Assembly 18th Session, Designation of 1968 as International Year for Human Rights, Report of the Third Committee (Mrs. Refslund Thomsen, Denmark), December 11, 1963, p. 1.

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No opposition was voiced by any member state. Among the supporters was the Soviet Union who, as they stated, placed the Universal Declaration as an instrument of highest importance next to the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and the UN Declaration on the Elimination of All Forms of Racial Discrimination approved only two weeks earlier on November 20, 1963.27 Another supporter, the United Kingdom, noted gladly that the Soviet Union that had not voted in favor of the Universal Declaration in 1948 was now showing such concern about human rights progress by 1968. An exchange of replies took place that momentarily brought the debate, rather unproductively, back to 1948 but any further controversy was avoided. It proved to be less of a balancing act than may have been feared and Egerton Richardson was able to push the resolution to a vote at the next meeting where it was endorsed unanimously.28 The Commission on Human Rights debated the item at its February-March 1964 session and decided that a separate Committee for the International Human Rights Year should be established. The Commission also endorsed the idea of an international conference on human rights in 1968 and stated that the new Committee should give special attention to this issue. The International Conference was now elevated to the major event of 1968 with a threefold purpose: 1) to review progress; 2) to evaluate effectiveness of the UN human rights methods; and 3) formulate a programme of further measures to

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Statement by Mr. Ostrovsky (USSR), UNGA Third Committee, 1283rd Meeting, December 6, 1963, p. 383. Soviet leader Nikita Khrushchev offered in April 1963 a possible explanation for the Soviet engagement on human rights. After the Cuban missile crisis was resolved there were hopes for a change in international relations. As Khrushchev explained to an Italian journalist “Genuine détente can be created by the joint efforts of all peoples Peoples should get to know each other better [but] we communists have never agreed, and never will agree, to the idea of peaceful coexistence in ideologies. In this there can be no compromise”. From this perspective human rights can maybe be regarded as a continuation of the Cold War by other means. Quote from Melvyn Leffler, For the Soul of Mankind. The United States, The Soviet Union and the Cold War. Hill and Wang, New York 2007, p. 169. UNGA Third Committee, 1284rd Meeting, December 9, 1963, p. 388. See also report from the Netherlands representative highlighting the Jamaican leadership behind the proposal, Ministerie van Buitenlandse Zaken, 77, Verslag over de Achttiende Algemene Vergadering van de Verenigde Naties, New York September 17 – December 17 1963. Gravenhage 1964.

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be pursued after the 1968 human rights year.29 The third point was a new development that gave longevity beyond the target year. The proposal was on track and Jamaica was already recognized as a leader of the UN human rights work.30 Egerton Richardson was appointed Chairman of the new Committee in June 1964 and in this capacity the Jamaican Ambassador took the lead in drafting a working paper that was submitted for the first series of meetings of the Committee on the International Year for Human Rights in July 1964.31 The Chairman’s role would be a balancing act between the vision behind the Jamaican proposal, the mandate provided for the work and the different agendas and strategic aims of the member states involved in the evolution of the human rights system. The progress in getting to this point had been rapid but now the Cold War agendas came knocking more forcefully at the door and they would continue in various disguises throughout the preparations and during the human rights year itself. Jamaica had become the main broker for the immediate future of the UN human rights programme and would find itself at the center of these diplomatic struggles. It was a task for which their UN Ambassador – appointed to this position immediately upon independence – had an interesting profile for taking on. At the end of June 1962 a Jamaican delegation visited Washington as part of the preparations for independence a few weeks later. In his then capacity as Financial Secretary, Richardson was part of the delegation led by Prime Minister Bustamente which also included several government ministers. Richardson had been promoted to Financial Secretary in 1956 during Norman Manley’s term in office. He was an example of how Jamaicans of African descent during the period of self-government leading up to independence were increasingly able to reach the highest levels of government and civil service.32 29 30

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E/3873 Commission on Human Rights, Report on the 20th Session, February 17 – March 18, 1964, ECOSOC Official Records, 37th Session, Supplement no. 8. Jamaica also announced its candidacy for membership of the Commission on Human Rights in late April 1964 and sought support for this. US National Archives, RG 59/250/7/20/Soc 14, Box 3202: “Text of Note no. 114/114 Dated April 30, 1964 From the Ministry of External Affairs, Kingston” and “Jamaican Candidacy Human Rights Commission”, Telegram from US United Nations Mission, May 19, 1964 to Secretary of State, Washington. ST/SG/AC.5/3: Programme of Measures and Activities to be undertaken in Connection with the International Year for Human Rights. Working Paper Submitted by the Chairman, June 25, 1964. Bell, 1964, p. 84.

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The US Embassy in Kingston clearly respected him and in providing background on the delegates from Jamaica, they wrote: Described by some as the most powerful man in the Jamaican Government, Financial Secretary Richardson may emerge as the most impressive member of the delegation. He has a reputation as an excellent negotiator, and a ruthless administrator. Serious-minded, sometimes stern,… there is wide agreement that he is highly color conscious.33 This was a unique set of skills for someone at the center of the UN human rights diplomacy in the 1960s. Ambassador Richardson would vary between being a neutral, a combative and a continuously constructive broker in the efforts to find solutions to the many principled and procedural issues that were to arise while at the same time breaking new ground in the human rights field. He would increasingly orient himself outside the United Nations working closely e.g. with Sean MacBride, Secretary-General of the International Commission of Jurists who was also part of the leadership of a newly established human rights NGO called Amnesty International. From the outset Ambassador Richardson gave a forceful vision for the human rights year – even for the more ceremonial aspects. His working paper explained that: the ceremonies and celebrations should be such as to dramatize the deeper meaning of individual liberty, and to illustrate how narrow is the dividing line between a scrupulous observance of the obligation to respect human rights and fundamental freedoms in our political, economic and social relationships and an effective denial of these rights.34 Richardson was keenly aware that underlying the often embracing and elevated rhetoric aired in UN human rights debates was in fact a continuing denial of these rights by the same UN member states. He was determined to challenge this status quo and look for new solutions. The Working Paper included two distinct proposals. One was an elaboration of the idea for an 33

34

American Consular-General to US Department of State, Washington, “Biographic Information on Bustamente Visit to Washington and London, Foreign Service Despatch, June 14, 1962, John F. Kennedy Library, National Security File, Box 123 (Jamaica). ST/SG/AC.5/3: Programme of Measures and Activities to be undertaken in connection with the International Year for Human Rights. Working Paper Submitted by the Chairman in Collaboration with the Officers of the Chairman, June 25, 1964, p. 6.

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international conference on human rights to be held in 1968. Larger member states like the Soviet Union, Ukraine, United States, United Kingdom and Canada expressed opposition to this idea but it appeared that it would generate widespread support from the Afro-Asian nations. The Costa Rican delegate strongly supported the idea and placed it in a larger context. For him the working paper: reflected a general desire to do something new and effective to promote the cause of human rights and the feeling that action could no longer be deferred. The idea of an international conference in 1968 had been born of that feeling of urgency.35 The second proposal tackled a major stumbling block in the preparation of the human rights conventions namely the measures of implementation. The working paper explained that the main outstanding questions for finalizing the draft covenants on civil and political rights and on economic, social and cultural rights were “whether one form of international machinery or another, or any international machinery at all, aimed at ensuring implementation of these agreements should be provided for”.36 This was a critical component if the human rights conventions were to have any real significance. These measures would involve international monitoring and a degree of accountability without which the legally binding nature of a convention would have little meaning and no dynamic process to support its elaboration over time. The Paper expressed hope that by the beginning of the Human Rights Year the two draft covenants and other conventions identified, including the one on racial discrimination and the one on religious intolerance, would be complete with effective measures of implementation included. The human rights year as a target for progress was supposed to provide momentum for these efforts. Richardson had requested that “reminiscences of the Cold War” be kept out of the Committee negotiations but with similarly worded interventions by the three Communist states (Soviet Union, Poland and Ukraine) emphasizing that the most important tasks for the Committee had to be the eradication of “apartheid, colonialism, neo-colonialism, fascism, neo-fascism and militarism” this appeared unlikely from the outset. The Soviet delegate even 35 36

ST/SG/AC.5/SR.5, Statement by Mr. Volio (Costa Rica), Committee on the International Year for Human Rights, 5th Meeting, July 10, 1964, p. 5. ST/SG/AC.5/SR.5, Statement by Mr. Volio (Costa Rica), Committee on the International Year for Human Rights, 5th Meeting, July 10, 1964, p. 7.

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called for the Committee to have as one of its goals the eradication of colonialism by 1965.The Danish representative on the Committee duly noted that the Soviet policy of promising more than could reasonably be achieved did not necessarily appeal to the African delegations.37 In his 1964 speech to the General Assembly, Hugh Shearer elaborated further on Jamaica’s aims. He was hoping that the international conference could provide an “opportunity of taking a fresh look at the whole human rights programme”, which should include a critical assessment of the work of the Commission on Human Rights. Shearer situated this work in a larger strategic context for the multilateral diplomacy: The existence of the United Nations as an institution of collective security and international cooperation presupposes the corresponding existence of an international legal order.38 Shearer therefore called for “encouraging the progressive development of international law and its codification” and for the General Assembly to elaborate the principles of international law at the 1964 session in order to contribute “to the rule of law throughout the world”.39 The Jamaican Ambassador had to apply his combative approach during the next meeting session of the Committee on the International Human Rights Year in November 1964. The United States strongly opposed a separate international human rights conference. They would only accept a special session of the General Assembly in New York. According to a report from UN Ambassador Adlai Stevenson, the United States convinced two members of the Sub-Group, Costa Rica and Turkey, dealing with the Conference proposal of keeping the conference within the confines of the General Assembly and at minimal cost. This was included in the report and the draft resolution for the November Committee meeting. Ambassador Richardson lashed out in what the US Ambassador called “a vicious campaign to persuade the weak delegates that the Resolution was in

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Memo from the Danish UN Mission to Foreign Ministry (Copenhagen), “Udvalget vedrørende det internationale menneskerettighedsår 1968”, Danish UN Mission in New York, 119.L.22a/3, Box 259, p. 7. Rigsarkivet (Danish National Archives), Copenhagen. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 19th Session, General Debate, 1293th Plenary Meeting, December 7, 1964, p. 12. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 19th Session, General Debate, 1293th Plenary Meeting, December 7, 1964, p. 12.

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effect, designed to kill the idea of a conference”. He gave a strongly worded assessment of the UN human rights work as he called, according to Stevenson: [the] Human Rights Commission incompetent, ineffective, and said it was killing United Nations initiatives in Human Rights, that it was unrepresentative of the United Nations, and that the best way to make sure that any conference on human rights was ruined was to let the Human Rights Commission participate in its organization. Furthermore, he stated that the present members on the Human Rights Commission had no interest in human rights.40 Richardson supposedly also “as on previous occasions... insulted the USSR”. Why this should have been a major concern to a US diplomat remains unclear but Richardson did not fold to the pressure of US demands. Instead he convinced the other delegations from developing nations that they should follow his lead, thereby keeping the idea of an international conference alive. Richardson had told a US diplomat that he needed some Big Power to support the idea. He had hoped that the United States would do this but as this was not the case he would now secure the necessary support from the United Kingdom for the conference proposal. As Adlai Stevenson noted, “this determination is now evident and Richardson seemingly will settle for nothing less”.41 For Richardson the 1968 conference was not just an event. It was a target to secure change. By early December, he had secured backing from the United Kingdom and he would not let the proposal falter. US diplomats had apparently been told by their British counterparts that the UK delegation “was under firm instructions not to alienate Amb. Richardson”.42 At a meeting on 14 December 1964, the UK Ambassador to the UN, Lord Caradon, made it clear to the Americans that he was an enthusiastic supporter of the Jamaican Ambas-

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Document 318, “Airgram from the Mission to the United Nations to the Department of State, November 24, 1964, Foreign Relations of the United States, 1964-68, Volume XXXIV, p. 561. Document 318, “Airgram from the Mission to the United Nations to the Department of State, November 24, 1964, Foreign Relations of the United States, 1964-68, Volume XXXIV, p. 563. Document 318, “Airgram from the Mission to the United Nations to the Department of State, November 24, 1964, Foreign Relations of the United States, 1964-68, Volume XXXIV, p. 563, footnote 4.

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sador’s proposal as he believed it was important that the United Nations was seen to be doing more in the human rights field.43 The US State Department was concerned that the Conference would be used as a platform for “race and other propaganda issues”.44 The race issue also featured prominently within the Administration at a meeting held on January 21, 1965 regarding the creation of a UN High Commissioner on Human Rights.45 Concern was expressed that domestic groups would use the Commissioner to seek further publicity on race relations in the United States.46 Ambassador Williams from the US Mission to the United Nations mentioned that these groups were “already appealing directly to foreign delegations in New York” so a UN Commissioner on Human Rights “would not create a new situation”. Actually the contrary was the case, since: a balanced and objective human rights reporting system would be helpful and was urgently needed to offset the ignorance and disbelief in New

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Lord Caradon’s (Hugh Mackintosh Foot) had been appointed British Ambassador to the United Nations in 1964. He had previously served on the UN Trusteeship Council but had resigned in 1961 over the Conservative Government’s stance on Rhodesia which he could not support. He became Ambassador after the Labour Government came to power. He had been stationed in Jamaica from 1945-47 and again from 1951-57 as Governor. In this capacity he was personally acquainted with Egerton Richardson, who at least from 1956 was one of the top civil servants in the Jamaican government. There was strong mutual respect between Lord Caradon and the Jamaicans. See DO 181/33, Letter from British High Commission, Kingston to Commonwealth Relations Office, January 24, 1963, British National Archives, London. See also Hugh Foot, A Start in Freedom. Hodder and Stoughton, London 1964. Document 318, “Airgram from the Mission to the United Nations to the Department of State”, November 24, 1964, Foreign Relations of the United States, 1964-68, Volume XXXIV, p. 563. President Kennedy had himself suggested the creation of UN High Commissioner on Human Rights in his 1963 General Assembly speech. It had then re-emerged as a topic of debate within the United Nations strongly backed by Latin American countries. See also Roger Stenson Clark, A United Nations High Commissioner for Human Rights. Martinus Nijhoff Publishers, The Hague 1972. US civil rights groups had previously made attempts to use UN machinery to address racial segregation in the United States. See Carol Anderson, Eyes off the Prize. The United Nations and the African American Struggle for Human Rights 1944-1955. Cambridge University Press, Cambridge 2003.

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York with respect to US progress in eliminating race discrimination – the US was already exposed and the situation could not be worse.47 This example shows that by 1965 all member states had to if not constructively engage, than at least scramble to find their own preferred solutions to human rights progress within the United Nations. The momentum was clear and new strategies had to be found. By the spring of 1965, the open opposition to the international human rights conference had disappeared. When the Commission of Human Rights discussed the International Human Rights Year all the doubters had either been convinced or at least accepted that the conference was a useful idea and the formal decision in favor was taken. Ambassador Richardson could therefore lead the discussion and seek support for an interim program of measures and a set of resolutions, co-sponsored by the Philippines and Costa Rica, intended to take the work forward. The debate did reveal divisions between the West and the East but the process now had sufficient momentum not to be undermined by these. The French representative, Rene Cassin, was concerned that “nothing was said about international machinery for implementing human rights” whereas the Soviet delegate was able to argue that “an excessive preoccupation with that aspect might divert attention from the more important task of promoting human rights (sic)”.48 It was an incoherent response but also an expression of how the momentum and progress with human rights at the United Nations was a challenge to the Communist states. Western delegates (Canada, United States) highlighted the importance of focusing on the rights of the individual while others focused on ending colonialism and Neo-Nazism (Poland and USSR). The idea of engaging regional human rights mechanisms was proposed by European and Latin American countries – the regions where such mechanisms existed. Interestingly, Poland argued that “the drafting of the Covenants in final form should constitute the most important objective for the United Nations in the human rights field”.49 It was starting to look as if the push from the developing countries and the 47 48

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Document 323. Memorandum of Conversation. Subject: Proposals for a UN Commissioner on Human Rights. Washington, January 21, 1965. See E/CN.4/SR.845, Statements by Mr. Cassin (France) and Mr. Yakovlev (USSR), “International Year for Human Rights”, Summary Record of the Eight Hundred and FortyFifth Meeting, Commission of Human Rights, 21st Session, April 12, 1965, p. 7 and p. 10. E/CN.4/SR.846, Statement by Mr. Dabrowa (Poland), “International Year for Human Rights”, Summary Record of the Eight Hundred and Forty-Fifth Meeting, Commission of Human Rights, 21st Session, April 12, 1965, p. 6.

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momentum from the preparations for the human rights year were providing dividends for the codification of both civil and political rights and for economic, social and cultural rights into international legal instruments.50 Richardson and his closest allies, including the Philippines, who held the post of Chairman of the Commission on Human Rights, had achieved what they wanted. The recent prominence of the race issue in the codification process for human rights and the centrality of apartheid and colonialism in UN debates had made the Communist states engage more than ever before in the human rights work across a broader specter of rights, including civil and political rights. This created new possibilities but as Richardson would experience it did not mean that the battles for the future of the human rights program were over. The battles would increasingly be over what at first glance were procedural issues but in reality were of great principle value to the international human rights work. The most significant battles were over the transparency and involvement of relevant stakeholders in the proceedings of the 1968 conference, namely the involvement of the regional human rights mechanisms and civil society, as well as setting the conference agenda. The Soviet Union and other Communist states were performing a peculiar balancing act. They were all in favor of pushing forward with the human rights agenda when it focused on race, apartheid and colonialism but tried to block any practical step that would mean an expansion of the human rights work since it could widen the human rights issues addressed. Their blocking of efforts could even be on such apparently minor issues as criticizing the request for a temporary expansion of staff in the UN Division of Human Rights to support the International Conference. The Soviets presented a line of reasoning that was very compatible with Richardson’s earlier assertion of the narrow dividing line between human rights promotion and denial. The Soviet statement was: The Division of Human Rights had sufficient staff to prepare the documentation. The United Nations human rights programme included 50

The momentum from the human rights year was also noticeable at the regional level in Latin America. The Organization of American States had decided that it would participate in the “activities of the International Year for Human Rights and that its 1967 Conference should consider the draft of an Inter-American Convention on Human Rights”. See A/CONF.32/PC/SR.7 - Statement by Mr. Martins (Uruguay), Preparatory Committee for the International Conference on Human Rights, Summary Record of Seventh Meeting, 18 May 1966. The Convention was finalized in November 1969 and opened for ratification.

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many activities which were clearly of secondary importance such as the study of everyone to be free from arbitrary arrest, detention and exile, the question of an international code of police ethics and the study of the right of an arrested person to communicate with those whom it was necessary to consult in order to ensure his defence or to protect his interests. If the Division of Human Rights postponed these studies, it would have sufficient staff and resources to make adequate preparations for the Conference.51 It was Ambassador Richardson who most strongly voiced opposition to the Soviet viewpoints. He claimed that the Committee was failing the Conference by not providing the necessary documents, including evaluations of the effectiveness of the methods used by the United Nations in the human rights field. He called for support to go against the Soviet attempts at limiting the scope of preparatory analytical work. Richardson was concerned with what he regarded as foot-dragging by the Western countries. He wanted them to mobilize their “renowned legal and human rights experts” and that Western fears that the Conference would degenerate into political debate should be countered by the West taking initiative and presenting new ideas for the international human rights work.52 Richardson would also highlight the importance of the work of non-governmental organizations and their value to the Conference. The Soviet Union, supported by some other states, was focused on limiting the role of the NGOs. At a 1967 Preparatory Committee meeting they used the recent revelations of CIA financial support to a number of NGOs as argument that to invite the NGO sector to the Conference “would be to poison its atmosphere. They should be rigidly excluded”.53 This was an issue where there was vocal opposition by several other states and eventually an application proce51

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A/CONF.32/PC/SR.8: Statement by Mr. Nasinovsky (USSR), Preparatory Committee for the International Conference on Human Rights, Summary Record of the 8th Meeting, May 19, 1966, p. 11. See US National Archives, RG 59/250/7/20, Soc 14, Box 3205: “1968 Human Rights Conference”, Telegram 4802 from US United Nations Mission to Secretary of State, May 6, 1966. A/CONF.32/PC/SR:35: Statement by Mr. Nasinovsky (USSR), Preparatory Committee for the International Conference on Human Rights, Summary Record of the 35th Meeting, July 20, 1967, p. 3. The Soviet delegate mentioned the International Commission of Jurists, the International Confederation of Free Trade Unions and several youth organizations. The International League for the Rights of Man was singled out because it criticized UN member states (slander in the Soviet terminology) on their human rights record.

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dure was found that allowed NGOs to participate in the 1968 Conference but only after extensive foot-dragging from within the Preparatory Committee.54 Jamaica played a pivotal role in securing their participation. The agenda for what from early in 1967 would become known as the Teheran Conference after the Iranian Government had offered to host the international conference was another contentious issue. Racial discrimination and apartheid was firmly established as major agenda items alongside “the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and their influence on the promotion of human rights and fundamental freedoms”. The third major item was the development of a unified long-term programme for the advancement of women.55 Among the other agenda items were issues like “to strengthen the defence of human rights and freedoms of individuals” and “international machinery for effective implementation of international instruments” but they were clearly becoming minor agenda items. It would be a conference that would have race, apartheid and colonialism as the major issues and the question was how much of the Teheran conference would be an acrimonious political debate and how much would be a real debate on human rights norms, standards, promotion and protection. It was on this point that Jamaica suffered its most significant defeat. Throughout the preparation period for the human rights year Jamaica had been advocating various models for furthering human rights protection, including national commissions on human rights, the creation of a UN High Commissioner for Human Rights,56 stronger mandated measures for the Commission on Human Rights in dealing with concrete human rights violations,57 creating a Human Rights Council to substitute the Commission on Human

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See A/CONF.32/PC/SR.43-45: Statement by Mr. Schreiber (UN Division of Human Rights), Preparatory Committee for the International Conference on Human Rights, Summary Records of the 43rd, 44th and 45th Meetings, March 18-19 1968. A/6354: “First Progress Report of the Preparatory Committee for the International Conference on Human Rights”, UN General Assembly Official Records, 21st Session, June 22, 1966. As mentioned above, this was a widely debated issue during the mid-1960s. This proposal was presented in collaboration with Italy and Morocco. See E/CN.4/L.923/ Rev.1: Question of the Violation of Human Rights and Fundamental Freedoms Including Policies of Racial Discrimination and Segregation and of Apartheid in All Countries, with Particular Reference to Colonial and Other Dependent Countries and Territories, Commission on Human Rights, 23rd session, March 15, 1967.

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Rights58 and ensuring a substantive evaluation of the international human rights efforts to be reviewed in Teheran. Jamaica was committed to fighting racial discrimination and apartheid and there is little doubt that Ambassador Richardson had finding effective measures to tackle South African intransigence very high on his diplomatic agenda. The problem was that too many member states did not live up to this principled agenda but instead were more than willing to compartmentalize human rights into narrow self-interest. Again, the Jamaican Ambassador gave the best analysis for the Conference’s demise. He actually delivered it two years before the delegates gathered in Teheran. Richardson’s analysis turned out to be prophetic both regarding the conference itself but also more interestingly on one central aspect of the longer-term Jamaican human rights legacy. Speaking at a meeting of the Preparatory Committee in May 1966, Richardson said about the agenda of the conference: There was no risk that racial discrimination and apartheid would not be amply discussed; the danger was that they might become the central focus of the Conference. The Committee should take every precaution to prevent the Conference from degenerating into a political debate which could more appropriately be held in other forums of the United Nations. If, for instance, colonialism was included in the agenda, the Conference might become involved in a discussion of the unresolved question whether self-determination applied to peoples as well as nations, thus setting of a process of recrimination which was likely to extend to other items of the agenda.59 He then went on by outlining what a constructive approach at the conference would be: The objective should be a discussion of apartheid, for example, solely from the point of view of the possible application of human rights tech-

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US National Archives, RG 59/250/7/20, Soc 14, Box 3205: “1968 Human Rights Conference”, Telegram 4908 from US United Nations Mission to Secretary of State, May 16, 1966. This model was introduced 40 years later in 2006. A/CONF.32/PC/SR.7: Statement by Mr. Richardson (Jamaica), “Agenda of the Conference”, Preparatory Committee for the International Conference on Human Rights, Summary Record of the 7th Meeting, May 18, 1966, p. 6-7.

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niques as a means of dissuading States from aiding and abetting the South African Government’s policy.60 It was this combined focus by Jamaica on concrete normative development with remedies or measures for action in the human rights field, instead of the strategy of political over-reach applied by many other states that was at the heart of the Jamaican approach and behind one of the only lasting legacies from the Teheran conference.

The UN International Human Rights Year, 1968 As the final preparations for the Teheran Conference, including approval of NGO delegates, took place in the early months of 1968 there were both highly visible and contested political issues getting attention and less noticeable developments of significance taking place. Rhodesia was high on the political agenda at the United Nations as the international community could observe executions of political prisoners and persons involved in the liberation struggle. In early March 1968 the Commission on Human Rights made a forceful statement both to Iain Smith’s regime and to the United Kingdom demanding the restoration of constitutionality, law and order and the saving of the lives of the remaining political prisoners of which there were more than one hundred. This issue and apartheid in South Africa occupied 35 of the 50 meetings of the 1968 session of the Commission on Human Rights. When the new Jamaican ambassador to the United Nations Keith Johnson61 spoke at a UN commemoration of the International Day for the Elimination of Racial Discrimination on March 21, 1968 he could listen to great disillusionment with the United Nations expressed by another speaker – the chairman of the UN Special Committee on Apartheid. The latter – who was the UN Ambassador from Guinea – spoke about the situation in Southern Africa and stated that war had broken out across the sub-region making any peaceful solution to the racial conflict increasingly unlikely. He indicted:

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A/CONF.32/PC/SR.7: Statement by Mr. Richardson (Jamaica), “Agenda of the Conference”, Preparatory Committee for the International Conference on Human Rights, Summary Record of the 7th Meeting, May 18, 1966, p. 7. Egerton Richardson had in 1967 been appointed Jamaican Ambassador to the United States.

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the culpable impotence of the international community…It is distressing to conclude today that a problem which could have been solved peacefully by negotiations between the oppressed and the oppressors must henceforth be resolved by force of arms, by fire and blood. This is a proof of our common failure and unfortunately augurs difficult days ahead for our Organization and for all Member States.62 This was a widely shared assessment of the United Nations one month before the first International Human Rights Conference in Teheran. It was not the best omen for the conference. There were also less noticeable developments leading up to Teheran, namely the fact that the conference was stimulating great interest in the signing of the covenants and the ratification of the Convention on Racial Discrimination. The covenants had been approved by the General Assembly on December 16, 1966 and were opened for signature a few days later on December 19. Both covenants were signed on this day by Jamaica, Costa Rica, Honduras, Israel and the Philippines. The Convention on Racial Discrimination had opened for signature on 7 March 1966 with 9 states signing immediately. They were Brazil, Soviet Union, Ukraine, Belarus, Central African Republic, Greece, Israel, the Philippines and Poland. By the beginning of 1968, the race convention had received 18 ratifications.63 The signatures and ratifications were statements of policy intent – often more of a symbolic nature – but despite this being so they played into the dynamics of the multilateral process. Increasingly, if a member state wanted to speak with credibility during the human rights debates the signatures and ratifications of the legal instruments was a benchmark to gain this credibility. It was symbolic competition or peer pressure that could deliver real policy 62

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Statement by Chairman (Achkar Marof) of Special Committee on Policies of Apartheid at Special Commemorative Meeting, 21 March. The Danish UN Ambassador attended the meeting and decided that a memorandum to the Foreign Ministry was required with a sole focus on Ambassador Marof’s speech. It was “symptomatic for the frustrations that exist among the majority of the UN’s Afro-Asian member states due to the UN lack of ability to have any influence over the development in Southern Africa” (my translation from Danish). Rigsarkivet, Danish UN Mission in New York, 119.L.22.a/9.2, Box 264. Ambassador Marof was referring to the situation in South Africa, South West Africa, Rhodesia, Angola, Mozambique and the Portuguese colony of Guinea in West Africa. A/CONF.32/7: Status of Multilateral Agreements in the Field of Human Rights Concluded under the Auspices of the United Nations – Report of the Secretary-General, January 31, 1968.

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outcomes when a sufficient number of ratifications were achieved. The International Human Rights Year preparations and the Teheran Conference provided a platform for this peer pressure to be applied. The pattern of signatures provided for both covenants just in the last month leading up to Teheran are interesting. The Soviet Union and Iran were among six states that signed both covenants from late March to late April 1968.64 There is little doubt that the timing was linked to the ambition of having the symbolic authority provided by this expression of political commitment during the debates in Teheran. The integrity of motives leaves much to be desired but its effect on the multilateral dynamics in the human rights field was not an unintended consequence of the Jamaica-initiated diplomatic process behind the international human rights year. It was a skillful and strategic use of multilateral diplomacy. At the Teheran Conference things quickly turned sour. A proposal by the Arab states for an additional agenda item on “Occupied Territories” led to a lengthy discussion on organization of the conference’s work that occupied most of the first week. It became a debate full of recriminations and bitter accusations shaped by recent events in the Middle East after the Six-Day War in June 1967. The Soviets sided with the Arab states and presented sharp attacks on Israel, including calling the delegation “persons who arrive with bloodsoiled hands”.65 The Americans felt that they fared well and had kept a low profile to the extent possible. President Johnson had appointed Roy Wilkins, the Executive Director of the National Association for the Advancement of Colored Peoples, to head the US delegation. The selection of an African-American civil rights leader as the main representative helped reduce the risk that the Conference would be used as a platform to attack the United States. The high point of the conference was the plenary statement from Czechoslovakia. In the middle of the Prague Spring, the speech became an illustration of what an endorsement of human rights could offer when the willingness to reform was greater than merely following the dictates by a state ideology protected by force. The Czechoslovak delegate stated that his country was currently going through a process that was of direct relevance to the Confer64

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Ecuador signed the Covenant on Civil and Political Rights during this period as well following an earlier signature in 1967 on the other covenant. Argentina signed both covenants in February 1968. Quoted from “Report from Danish Embassy in Teheran regarding Human Rights Conference”, May 21, 1968. Rigsarkivet, Danish Mission to the UN in New York, 119.L.22a/3.2, Box 260.

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ence as the reformist moves entailed a national discussion on “preparation of new standards in the field of human rights and civil liberties”. He continued that in the past twenty years Czechoslovakia “had experienced contradictory development, with numerous positive achievements, especially with regard to economic, social and cultural rights and the abolition of social injustice; on the other hand, human rights and political liberties that had been limited or suspended during the revolutionary changes, had not all been re-introduced when they should have been”.66 The speech was a symbol of hope for the human rights venture and according to an American observer “caused mild sensation in hall and was greeted with heavy applause in which Russians barely participated”.67 In August 1968 the hope collapsed when the Soviet Union invaded and ended the Prague Spring. At Teheran Jamaica was one of many participating countries. Their unique contribution was, however, recognized when the United Kingdom acknowledged that Jamaica “had played a great part in… the United Nations in furtherance of human rights”.68 The Jamaican delegation tried to keep attention firmly focused on the purpose of the Conference. They highlighted the fact that the UN had recently started to place greater emphasis on two techniques in the human rights field, namely fact-finding and dissemination of these facts that the UN had been impelled to use in dealing with the conditions across Southern Africa.69 Jamaica otherwise focused on securing the approval of several resolutions. They actively promoted resolutions focusing on human rights and armed conflict, treatment of persons who opposed racist regimes and on the establishment of a new, additional UN programme on racial discrimination. The latter proposal that appeared constructive and relevant given the focus of the conference agenda was opposed by many African states as a protest over the policies of one of Jamaica’s cosponsors – the United Kingdom. This aside all of the Jamaican resolutions were approved. The role of driving force behind the resolution on human rights and armed conflict and the treatment of those who oppose racist regimes was testimony to Egerton Richardson’s outreach and network. In March 1968 The Assem66 67 68 69

A/CONF.32/SR.12: Statement by Mr. Bystricky (Czechoslovakia), International Conference on Human Rights, Summary Record of the 12th Meeting, April 29, 1968, p. 184-185. US National Archives, RG59/Subject Numeric File 1967-69,Soc 14, Box 3127, “Telegram 4428: From AM Embassy Teheran to Sec State Washington, April 1968”. A/CONF.32/SR.9: Statement by Mr. Roberts (United Kingdom), International Conference on Human Rights, Summary Record of the 9th Meeting, p. 100. A/CONF.32/SR.3: Statement by Mr. Williams (Jamaica), International Conference on Human Rights, Summary Record of the 3rd Meeting, p. 22.

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bly for Human Rights, a large gathering involving distinguished diplomats and legal experts from around the world, gathered in Montreal as part of the human rights year to address “the condition of human rights in this year of international crisis” and to explore ways forward to realizing human rights protection. The final statement focused on well-known areas like discrimination and apartheid but under its new areas of concern also included human rights in armed conflict. The Assembly was greatly concerned with what they described as “the increasing violence and brutality of our times” noting a variety of brutal practices that were being applied in violent conflicts around the world. They noted the shortcomings of international law and the failure to update the laws of war or international humanitarian law. They pointed out that the International Committee of the Red Cross had written to all governments in early 1967 to draw attention “to the need for more up-to-date and comprehensive international safeguards for civilian populations and other victims of violent conflict”.70 The Assembly also noted that this appeal had not received deserved attention from governments. The Assembly appointed a Standing Committee to implement the work of the Assembly and this included John Humphrey, the UN Director for Human Rights 1946-1966, Sean MacBride, Secretary-General of the International Commission of Jurists, and Egerton Richardson. During the Teheran Conference that started the following month Egerton Richardson took this role seriously and secured international approval from governments to the concerns raised by the Assembly on human rights in armed conflicts.71 It was the starting point for an important innovation in international law. After three difficult weeks, where the aftermath of the 1967 Six Day War and the issue of the Occupied Territories had loomed large over the proceedings, the human rights conference approved a Final Act with a proclamation and 29 resolutions. It would have been over optimistic to have expected much more than was achieved but the non-committal nature of the proclamation is noticeable. Any achievements were dependent on follow-up in the structures of the UN General Assembly where formal endorsements were required before anything could be done. The lasting contribution that Jamaica had hoped for was very uncertain. It was in many ways an anti-climax after five to six years of building momentum for this gathering. The event had taken place but whether achievement of the target – i.e. real progress in the field of interna70 71

Montreal Statement of the Assembly for Human Rights, March 22-27, 1968. Richardson was supported by Sean MacBride in preparing this resolution. MacBride was present in Teheran on behalf of the International Commission of Jurists.

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tional human rights – was obtained was much less clear. Egerton Richardson most certainly reflected on what had been achieved and the lessons learned. In the aftermath of Teheran more than 125 NGOs gathered in Paris in September 1968 for a 5-day “International NGO Conference on Human Rights”. The purpose was to formulate an NGO strategy for human rights promotion and protection. It was organized as part of the celebrations of the international year for human rights. The Conference brought together a number of distinguished speakers including the Zambian President Kenneth Kaunda, Rene Cassin, the former Jamaican-based lawyer and now Attorney General of British Guyana, S.S. Ramphal and the UN Secretary-General U Thant gave an opening statement . The leading NGO representative, Sean MacBride, highlighted that the resolution from Teheran on human rights in armed conflicts “may well be the most valuable concrete result of Human Rights Year”.72 Ambassador Richardson also gave his assessment of the Teheran Conference to the NGO representatives. He had spent the months after the conference reflecting on its value. Had the objectives of conducting an international review of the human rights efforts in the UN and laying down an international programme for the succeeding period been the right approach? Richardson answered in the affirmative. He did not assess the actual conference as positively. He believed that the conference had deliberately neglected to examine the causes underlying the lack of progress on human rights since the Universal Declaration. He made it clear that: Teheran was our moment of truth, when we came face to face with the nature of our beast – when we saw what it means to be promoting the cause of Human Rights by working mainly through governments. Surely no one would have been taken by surprise at the results in Teheran.73 Richardson believed that an increased role for NGOs and a focus on national level work was the way forward for future efforts. The delegates heard his call and developed the outline of the first international NGO strategy on human rights. It focused on fact-finding and strategic information, advocacy for securing state ratification of human rights conventions and human rights education. 72 73

Sean MacBride, “New Avenues of Implementation”, Toward an NGO Strategy for the Advancement of Human Rights. Conference Report, 1968, p. 65. Sir Egerton Richardson, “The Perspective of the Teheran Conference”, Toward an NGO Strategy for the Advancement of Human Rights. Conference Report, 1968, p. 25.

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In their speech to the UN General Assembly two weeks later Jamaica took the opportunity to express their disappointment with the slow pace of progress since the Universal Declaration and that the Teheran conference did not fulfill any of its tasks. “It may well be”, it was noted with a tone of resignation, “that given the political realities of 1968, we could not have done so”.74 There was, however, one area where progress was continuing with the human rights year of 1968 providing an important incentive, namely the signing and ratification of the covenants and conventions by member states. By the end of 1968, the human rights year had witnessed 19 signatures on each of the Covenants with the Human Rights Day on 10 December providing the last leap in state signatures. When India and Poland in early December 1968 became the 26th and 27th countries to ratify the Convention on Racial Discrimination, it entered into force after a thirty day period on January 4, 1969. Human rights had become international law and the first human rights treaty body was to be established. A new phase in the international human rights work could now begin.

An Enduring Legacy: Jamaica and Human Rights In 1993 the international community gathered in Vienna for the “World Conference on Human Rights”. The purpose of the conference was to renew the agenda for the international human rights work in the Post-Cold War world. The Conference had first been called for by the UN General Assembly in December 1989 through a resolution that sought the views of governments, non-governmental organizations and UN agencies on the “desirability” of a world conference on human rights.75 The conference plans soon progressed. The outcome from the world conference was the Vienna Programme of Action that laid the foundation for the rise of human rights in the Post-Cold War era – what has been labeled as the human rights surge in the 1990s.76

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Speech by Mr. Allen (Jamaica), United Nations General Assembly, 23rd Session, General Debate, 1679thPlenary Meeting, October 3, 1968, p. 15. This was the first time since independence that Hugh Shearer did not deliver Jamaica’s speech to the General Assembly. He had in the meantime become the country’s Prime Minister. See Resolution 44/156: “World Conference on Human Rights”, 82nd Plenary Meeting, December 15, 1989. Eric D. Weitz, “The Human Rights Surges of the 1940s and the 1990s: A Commentary on Margaret E. McGuinness and William A. Schabas”, Diplomatic History, Vol. 5, No. 5, November, 2011, p. 793-796.

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The interesting thing is that when facing a major political transformation in world politics in 1989 and the following years – i.e. the fall of Communism – the international community reached for a model invented by Jamaica. In the background documentation for the 1993 Vienna Conference, there are numerous references to the Teheran Conference as a precedent.77 There was a need for a larger scale event visible outside the confines of the standard UN meeting procedures. In short a birth moment – or rights of passage so to speak – for a dynamic and new human rights program to serve the opportunities and needs of a new era just like the intention had been behind the international conference in 1968. The Teheran Conference, however, had been no major success. It was widely regarded as a disappointment. I will, however, argue that the preparatory process for the 1968 Conference was important because of how Jamaica had envisioned this process within the United Nations. The dynamics around signatures and ratifications has already been explained as one example of this. Jamaica was not the only member of the United Nations who worked to strengthen and expand the role of human rights in international relations and domestic affairs. Their success would not have been possible without supporters and other states that took the lead on specific items. The timing also worked to Jamaica’s benefit. As the country entered international diplomacy through the United Nations in 1962, they could build on the momentum created by a significant number of states pushing at the same General Assembly session for an international convention on elimination of racial discrimination which was finalized in record time. It is beyond doubt that the breakthrough for human rights as legally binding standards and the preparations for the human rights year were parallel processes that mutually reinforced each other from 1962 and over the following years. No other UN member state, however, worked during this period as systematically or with the same clarity of vision as Jamaica to elevate human rights as guiding universal principles with the implications this would have both on

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See for example: A/CONF.157/PC/12 “Opening Statement at the First Session of the Preparatory Committee for the World Conference on Human Rights by the SecretaryGeneral of the World Conference”, Preparatory Committee, First Session, September 9-13, 1991, p.2; A/CONF.157/LACRM/4, “Implementation of Human Rights within the United Nations, a report by Felix Ermacora, World Conference on Human Rights, Regional Meeting for Latin America and the Caribbean, Costa Rica, January 18-22, 1993; A/CONF.157/PC/57, “Report of the Regional Meeting for Africa on World Conference on Human Rights”, Tunis, November 2-6, 1992.

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international and domestic affairs.78 Jamaica took, when necessary, a combative approach to protect the integrity of their idea but also provided the most innovative proposals for an expansion as well as an anchoring in terms of accountability of a new international human rights system. This in itself is a significant role in a decade where the UN human rights diplomacy was such a decisive factor in determining the future of any international human rights programme. It is not hard to imagine that human rights in the United Nations could have continued for years without much direction in a state of limbo and without the codification of even some basic legal standards to build on if leadership had not been provided in significant ways. Instead Jamaica was the driving force in this breakthrough through proposing and facilitating a structured process and continuously pushing against and exposing the limitations of the possible inside the United Nations. It is therefore not unreasonable to conclude that Jamaica was decisive in delivering the human rights project on the doorstep of the 1970s when global NGO activism came to further define the struggle for human rights and elevate the concept into the global moral conscience. The main reasons for the failure of the Teheran Conference were the deeply divisive and mainly unconstructive debates and the fact that the resolutions adopted did not have much longevity. The resolutions were seen as too politicized and not able to benefit a broad human rights programme. The actual commitment by many member states was also more than doubtful as has been described above in Jamaica’s assessment of the Conference. Their conclusion was shared by all the Scandinavian delegations to the Teheran Conference and later historical assessments.79 There was, however, one resolution from the 1968 Teheran Conference that had a major impact and is still highly relevant today. It was the resolution on human rights in armed conflicts inspired by the serious situation in Rho78

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The Jamaican vision easily embraced the inter-relatedness and indivisibility of human rights. It is noteworthy, that when a series of international seminars were to be organized in the run up to the 1968 Conference, Jamaica decided to host the seminar on civil and political rights that elaborated the principles for the effective realization and protection of civil and political rights at the national level. This was not the typical human rights focus by a developing nation. See the reports from the Danish, Swedish and Norwegian delegations respectively: Rigsarkivet, Danish UN Mission in New York, 119.L.22a/3.2, Box 260. See also Roland Burke, “From Individual Rights to National Development: The First UN International Conference on Human Rights, Teheran, 1968”, Journal of World History, Vol. 19, no. 3, September, 2008, p. 275-296.

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desia, South West Africa and South Africa where struggles for independence were brutally suppressed by white minority regimes. Executions were regularly taking place and the resolution called for that those struggling against these regimes “should be protected against inhuman or brutal treatment and also that such persons if detained should be treated as prisoners of war or political prisoners under international law”.80 It was Jamaica that had secured the backing for this resolution. The legal status for these unrecognized combatants was unclear and Jamaica’s resolution therefore called for an improved application of international humanitarian law and rules in armed conflicts and highlighted the need for new international conventions in this field “to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare”.81 The proposal received strong support and the resolution was, as mentioned earlier, adopted. In a joint Nordic assessment of the Teheran conference in preparation for the 1968 General Assembly, it was widely supported with the Norwegian representative calling the resolution “a positive exception and deserving support”. At the 1968 General Assembly, it was approved as a resolution and in 1969 it became part of the legal debates at the International Conference of the Red Cross. In 1977, it became part of international humanitarian law as the second additional protocol to the Geneva Conventions.82 The importance of this development in international law is well-documented while Jamaica’s role remains unacknowledged. As Richardson had stated in 1966 the constructive approach at the conference would be to for example explore the “possible application of human rights techniques” to curtail the actions of apartheid-style governments in Southern Africa. He remained true to his words and in return the effort has been recognized in the following way: In 1968 the International Conference on Human Rights, which convened in Teheran under the auspices of the United Nations, marked an important turning point by establishing the relationship between human 80 81 82

See Resolution XXIII, Final Act of the International Conference on Human Rights, Teheran April 22 to May 13, 1968, p. 18. Resolution XXIII, Final Act of the International Conference on Human Rights, Teheran April 22 to May 13, 1968, p. 18. Formally known as Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

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rights and international humanitarian law. By adopting a resolution on human rights in armed conflicts which encouraged the development of new rules, the Conference qualified humanitarian law as an extension of human rights and included it amongst the matters of concern for the United Nations. Henceforth, the rules of international law on human rights, and in particular the International Covenant on Civil and Political Rights, would be used as a point of reference to bring into focus the fundamental guarantees given in Protocol II for the way in which human beings should be treated.83 These provisions would receive renewed attention in the international response to the attacks on September 11, 2001. Dealing with the treatment of civilians and so-called illegal combatants, they expressed legal standards that were at the center of a larger debate on national security and human rights – a debate which fundamentally was about the strategy to pursue in the socalled “war on terror”. The standards were being applied in a different era and a different historical context. They evoked both controversy and an element of accountability against which to measure the treatment of individuals who were either civilians or prisoners or combatants. This can reasonably be regarded as one of the enduring legacies of Jamaica’s human rights diplomacy in the 1960s. The Jamaican human rights year initiative also had a more specific impact across the Atlantic, namely on the regional human rights system in Europe. The Council of Europe’s human rights work was energized after 1968. Until this point, it had developed little jurisprudence and had played a peripheral role in European politics. The assessment after the participation at the Teheran Conference on Human Rights in 1968 was that the European human rights system had never received such international attention and interest. It was a success and the Council of Europe followed up by developing a programme of work in response to decisions taken during the international human rights year. It shaped the internal debates and in January 1971, the Consultative Assembly of the Council of Europe took the initiative to seek a more systematic approach to furthering human rights in Europe recognizing that “twenty years after the conclusion of the [European] Convention new ideas are emerging and new techniques are being developed, creating 83

International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, eds. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann. Martinus Nijhoff Publishers, The Hague, 1987. p. 1327.

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situations which were unforeseeable a short time ago”. 84 The Council’s Legal Committee pointed to omissions in the European system compared to the UN Covenants. The European system was the most advanced regional system but the comparison did not say much at this stage. Instead the European system was trying to catch up with global developments. By the end of October 1971 a Parliamentary Conference on Human Rights had stressed that the parliamentary and governmental machinery of the Council of Europe should be strengthened to further human rights in Europe. It is difficult not to see some influence from here to the debates on strategy for the CSCE negotiations in Helsinki that took place among the members of the European Economic Community before the negotiations began in late 1972. The new European engagement with human rights was influenced by the 1960s developments in the field and the Jamaican vision that had been influential in redefining the role of human rights in international affairs.85

Concluding Remarks When Hugh Shearer delivered Jamaica’s first speech to the UN General Assembly in 1962 and proposed the human rights year, he expressed the hope that “the total world would be concerned with the total world”.86 This may have been a naïve hope given all the denial and obstruction that the Jamaicans faced during the historical process presented above. It may also be a naïve hope from the perspective of today – even with the global developments in the intervening years in mind. Yet even now it resonates with the history and the aspirations behind the rise of human rights that can be witnessed from the 1960s to its current global significance for the international community of today. Domestically, Jamaica proved incapable of maintaining these standards. After 1968, the Jamaican leadership role rapidly faded and was gradually forgotten. The realities of independent statehood placed pressure on Jamaican politics and society that became greatly affected by the lack of social and economic development, unemployment and debt. The aspirations of the 1960s 84

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See e.g. “Report of the Committee of Experts on Human Rights to the Committee of Ministers”, September 12, 1974, Box 1808, Committee of Experts on Human Rights, 19741976, folder 1218, p. 3. Council of Europe Archive, Strasbourg. These connections and their chronology are elaborated in Jensen, 2013. Speech by Mr. Hugh Shearer (Jamaica), United Nations General Assembly, 17th Session, General Debate, 1145th Plenary Meeting, October 8, 1962, p. 379.

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crashed and the harsher realities of the 1970s political and economic order only provided ever greater challenges. Jamaica became a focus of human rights investigations and well-known for having a problematic human rights record. The domestic and international trajectories widely differed. During the 1960s, Jamaica had spoken directly to larger issues affecting the international community and promoted human rights and international law as a remedy. The year before Jamaica launched its human rights initiative, President John F. Kennedy in his 1961 address to the UN General Assembly stated that a “community without law is but a shell”.87 His speech was a call for the international community to develop international law as a means of survival in order to secure peace and security in the midst of the Cold War. Looking back five decades, the international community, whatever its shortcomings, is no longer a shell. It has developed legal standards in many fields with human rights being one of the most prominent. It is beyond doubt that Jamaica – in an uncertain and transformative period for the international community – played a pivotal leadership role in shaping the breakthrough for international human rights and thereby international law. It laid the foundations for the much better known developments of the 1970s where human rights became a central issue on global political and humanitarian agendas. The Jamaican broker had helped give substance to the notion of an international society.

Archives British National Archives, London Council of Europe Archive, Strasbourg John F. Kennedy Library, Boston, Massachusetts Rigsarkivet (Danish National Archives), Copenhagen National Library of Jamaica, Kingston UN Library, Geneva US National Archives, College Park, Maryland 87

Speech by John F. Kennedy (United States), United Nations General Assembly, 16th Session, General Debate, September 25, 1961, http://www.jfklibrary.org/Asset-Viewer/ DOPIN64xJUGRKgdHJ9NfgQ.aspx – quote appears at 2:45 minutes. Accessed on October 29, 2013. At this point in time, the United States had not embraced the UN international law project in the human rights field. They had actually distanced themselves from it. The reversal would gradually occur from 1963 influenced by the 1962 developments described above. See RG 59/150/71/15/4: Records Pertaining to UN General Assembly, 1962-1965, Boxes 4-6, US National Archives, College Park, Maryland.

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Source Collections Ministerie van Buitenlandse Zaken, 77, Verslag over de Achttiende Algemene Vergadering van de Verenigde Naties, New York 17 September – 17 December 1963. Gravenhage 1964. International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, eds. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann. Martinus Nijhoff Publishers, The Hague, 1987. US Department of State, Foreign Relations of the United States, 1961-1963, Vol. XXV. US Department of State, Foreign Relations of the United States, 1964-68, Volume XXXIV.

Literature Alexander, Robert J. (ed.), “Conversation with Norman Manley in New York City, March 16, 1954”, Presidents, Prime Ministers and Governors of the English-Speaking Caribbean and Puerto Rico: Conversations and Correspondence. Praeger Publishers, Westport, CT, 1997. Anderson, Carol, Eyes off the Prize. The United Nations and the African American Struggle for Human Rights 1944-1955. Cambridge University Press, Cambridge 2003. Bell, Wendell, Jamaican Leaders. Political Attitudes in a New Nation. University of California Press, Berkeley 1964. Burke, Roland, “From Individual Rights to National Development: The First UN International Conference on Human Rights, Teheran, 1968”, Journal of World History, Vol. 19, no. 3, September 2008, p. 275-296. Burke, Roland, Decolonization and the Emergence of International Human Rights, University of Pennsylvania Press, Philadelphia 2010. Clark, Roger Stenson, A United Nations High Commissioner for Human Rights. Martinus Nijhoff Publishers, The Hague 1972. Eckel, Jan and Samuel Moyn, The Breakthrough: Human Rights in the 1970s. University of Pennsylvania Press, Philadelphia 2013. Final Act of the International Conference on Human Rights, Teheran April 22 to May 13, 1968. Foot, Hugh, A Start in Freedom. Hodder and Stoughton, London 1964. International Committee of the Red Cross, in Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June

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1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers, The Hague 1987. Iriye, Akira, Petra Goedde and William I. Hitchcock, The Human Rights Revolution: An International History. Oxford University Press, New York 2012. Jensen, Steven L. B., Negotiating Universality: The Making of International Human Rights, 1945-1993. Unpublished PhD dissertation, University of Copenhagen 2013. Jensen, Steven L. B., “‘Universality should govern our small world of today’: The Cold War and UN Human Rights Diplomacy 1960-1968”, in Rasmus Mariager, Karl Molin and Kjersti Brathagen (eds.), Human Rights in Europe During the Cold War. Routledge, London 2014. Keys, Barbara, Reclaiming American Virtue. The Human Rights Revolution of the 1970s. Harvard University Press, Cambridge, MA 2014. Klose, Fabian, Human Rights in the Shadow of Colonial Violence. The Wars of Independence in Kenya and Algeria. University of Pennsylvania Press, Philadelphia 2013. Leffler, Melvyn, For the Soul of Mankind. The United States, The Soviet Union and the Cold War. Hill and Wang, New York 2007. MacBride, Sean, “New Avenues of Implementation”, Toward an NGO Strategy for the Advancement of Human Rights. Conference Report. 1968, p. 64-65. Montreal Statement of the Assembly for Human Rights, March 22-27, 1968. Morgan, Michael Cotey, “The Seventies and the Rebirth of Human Rights”, in Niall Ferguson, Charles S. Maier, Erez Manela and Daniel J. Sargent (eds.), The Shock of the Global. The 1970s in Perspective. Harvard University Press, Cambridge, MA 2010, p. 237-250. Moyn, Samuel, The Last Utopia. Human Rights in History. Harvard University Press, Cambridge, MA 2010. Richardson, Sir Egerton, “The Perspective of the Teheran Conference”, Toward an NGO Strategy for the Advancement of Human Rights. Conference Report. 1968, p. 23-27. Schmitz, David F. and Vanessa Walker, “Jimmy Carter and the Foreign Policy of Human Rights: The Development of a Post-Cold War Foreign Policy”, Diplomatic History, vol. 28, no. 1, 2004, p. 113-143. Schwelb, Egon, Human Rights and the International Community. Quadrangle Books, Chicago 1963. Simmons, Beth, Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press, Cambridge 2009. Timm, Birte, “Caribbean Leaven in the American Loaf: Wilfred A. Domingo, the Jamaican Progressive League and the Founding of a Decolonization Movement for Jamaica”, German Historical Bulletin, Supplement 5, 2008, p. 81-97.

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Waters, Anita, “Half the Story – the Uses of History in Jamaican Political Discourse”, Caribbean Quarterly, Vol. 45:1, 1999, p. 62-77. Weitz, Eric D., “The Human Rights Surges of the 1940s and the 1990s: A Commentary on Margaret E. McGuinness and William A. Schabas”, Diplomatic History, Vol. 5, No. 5, November 2011, p. 793-796. Whelan, Daniel J., Indivisible Human Rights. University of Pennsylvania Press, Philadelphia 2010.

chapter 5

The Past Discontinued: American and European Views on International Criminal Tribunals, 1918-1945 Erik André Andersen In 1944 the United States, like Britain, made a 180-degree turn from its 1919 war crimes policies, but in the opposite direction. taylor, 19931

Introduction The question of how authorities should deal with excessively cruel behaviour by soldiers against civilians or prisoners of war has been discussed since ancient times. While many good reasons have been found for waging wars (such as, for example, gaining more power and prosperity, or religious motivations, or defence against aggressive neighbours) there has also been a perception that some kind of demarcation line existed between, on the one hand, what was necessary for winning the wars and, on the other hand, what was not necessary and therefore might be characterized as excessive cruelty. Linked with this were discussions on punishment of perpetrators and codification of the norms, including the establishment of international crimes and international criminal courts. One of the most important steps in this long development on war crimes and other war-related issues was the discussion after and in-between the two world wars in the period 1918-1945, resulting in the international military tribunals in Nuremberg and Tokyo in the second half of the 1940s. The USA and its allied counterparts in Europe, mainly Britain, had different perceptions of what should be done with the defeated opponents after both the First and the Second World Wars. Moreover, not only did they have different perceptions, they interchanged perceptions from the First to the Second World War and took over the other side’s arguments and points of view. This is apparently a paradox. The aim of this chapter is to find out why 1

Telford Taylor, The Anatomy of the Nuremberg Trials. A Personal Memoir. Bloomsbury, London 1993, p. 33.

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this paradox occurred and what in a more specific sense determined the different perceptions.

The Background The general background and the political and military context can be outlined as follows: In none of the two World Wars did the USA participate from the beginning, but the USA played an important role in the final outcome and was on the winning side in both cases. The First World War started between the Entente (Britain, France and Russia) and the Central powers (Germany, Austria-Hungary and the Ottoman Empire), and it was only in 1917 that the USA interfered on the side of the Entente and contributed to the defeat of the Central powers in 1918. The Second World started between Britain and France, on the one side, and Germany on the other. Other important states that became involved in 1941 were the Soviet Union, Japan and the USA. Two major fighting blocks were formed, i.e. the Axis powers led by Nazi-Germany and the anti-Nazi alliance, which soon gave itself the informal designation the United Nations, a forerunner of the international organization of the same name established in 1946. After the First World War, on the basis of an armistice, a preliminary Peace Conference took place in Paris in 1919,2 to negotiate a number of peace agreements as well as to determine the new political and geographical structure of Europe and the Middle East, that had appeared with many new states after the fall of the great empires Germany, Austria-Hungary and the Ottoman Empire.3 After the Second World War, and the unconditional surrender of Germany and Japan, the victorious powers did not need to negotiate with the defeated nations but could dictate the con-

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The preliminary peace conference lasted half a year and was never followed by another “real” one, so the preliminary Peace Conference proved to be the Peace Conference in Paris in 1919 (Margaret MacMillan, Paris 1919. Six Months that Changed the World. Random House, Toronto 2001). Also Russia was a fallen empire, but in 1919 its destiny was uncertain due to the Civil War (1918-1920). Ultimately, Russia did not disintegrate geographically either after the revolution in 1917, the separate peace agreement with Germany in Brest-Litovsk in 1918, or the Civil War, and the Russian Empire reappeared as the Soviet Union, albeit without the Baltic States.

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ditions.4 Nevertheless, the Allied Powers needed to negotiate between themselves with regard to the new architecture and the role of Germany and Japan in the post-war world. And, most importantly in this context, they had to decide what should be done with the crimes committed (and the criminals) during the two exceptionally brutal wars in 1914-18 and 1939-45. Before moving further, a few reservations have to be made with regard to the meaning of the “perceptions of the USA and Europe”. Clearly, there is no such thing as the perception of the USA and Europe, because there are many different perceptions in the USA and Europe, and the allies in Europe can furthermore be subdivided in different states, so which states are we talking about? In the framework of this chapter the perception of a country is the government’s perception at a given time, including the different arguments and viewpoints brought forward or disregarded in order to formulate the perception of a given topic. Thus, public opinion is not understood as the country’s perception; it is only when the government uses or refers to public opinion as part of its argumentation that it becomes important. When reference is made to the allies in Europe, this refers mainly to Britain and France, they being the most important allies of the USA, especially during the First World War and, with regard to Britain, also during the Second World War. France was in a special situation, being quickly defeated by Germany already in 1940. Comparing the First and the Second World Wars there was a similar situation on the battlefield on the Western front, when Germany in both cases attacked France while Britain remained in relative security on the other side of the English Channel. Also Russia and the Soviet Union were important links in the alliances against Germany in both world wars and carried heavy burdens on the Eastern front. Although its political and military situation differed from that of Britain and France, Russia contributed to an important declaration against the Armenian genocide in 1915 and the Soviet Union took part in the international military tribunals after the Second World War. Therefore Russia and the Soviet Union will also be included among the European perceptions with regard to the crimes committed during the two world wars. The main emphasis will, however, be put on comparison between the USA and Britain. In the following I shall, first, briefly describe the different perceptions. I shall then outline the crimes that were under consideration, and after that 4

Although, after the First World War, there was also a high degree of coercion from the side of the victorious states with regard to the conditions contained in the peace agreements, the fact that they were negotiated on the basis of an armistice and not unconditional surrender proved to have no little significance when the elements of the treaties subsequently were implemented, as will be illustrated in this chapter.

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I will suggest a scale of measurement against which the crimes were measured. I shall then review how the perceptions were shaped when they met disturbances from developments in real life by the end and after the two world wars. This will lead up to a conclusion.

The Perceptions There were basically two different opinions on what should be done with the persons who committed war-related crimes during the two world wars. While there was no disagreement among the victorious powers that the responsible persons should be punished, the difference manifested itself with regard to whether they should be punished with or without trial. During and after the First World War, Britain and France were in favour of placing the accused before an international criminal tribunal,5 while the United States was much more reserved about the idea of an international criminal tribunal and preferred to give priority to a long-term perspective on the security architecture, not only in Europe but globally within the framework of a new League of Nations. In contrast, by the end of the Second World War the perceptions were reversed. Britain now took the point of view that the accused, i.e. a group of top Nazi persons, should be summarily executed without trial. The USA shared this viewpoint until the last months of the war, but changed its position at the last moment and ultimately became strongly in favour of an international criminal tribunal and, as a result, became the main architect and driving force behind the trials in Nuremberg and Tokyo.

The Crimes Three crimes were under consideration for trial and/or punishment. They were not crimes in the sense that there was a legal basis in international law for judgment and a mechanism for punishment. But they were perceived by many as crimes that should be punished (with or without trial) and they were intensively discussed in order to find a suitable legal regime, such as an international convention linked with an international criminal court. The two

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In this they were strongly supported by Belgium, which had suffered a similar fate to France, being invaded by Germany in 1914.

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world wars were catalysts in the long process of creating an international criminal court, ultimately to be established in 1998.6 The first of the crimes was to have started the war, also called aggression or crimes against the peace. The second was war crimes, i.e. crimes committed during the war, for instance, by killing defenseless prisoners of war or civilians. The third was crimes against humanity, a relatively new concept compared with the two others; the concept was first mentioned in 1915, and – at that time – in the meaning of what subsequently would be called genocide. After the Second World War there was also a fourth crime, namely conspiracy; it was more of a technical tool based in Anglo-American legal practice and used in order to simplify the prosecution in Nuremberg and Tokyo. There was far from any international agreement that starting a war should be perceived as a crime. Traditionally, it belonged to the sovereign decision of the individual state, and for many centuries it was considered as a normal and legitimate way for a state to increase its influence and power by conquering new territory and defeating other states. The concept of just wars was also a way to legitimate military attacks.7 However, international peace conferences began to appear during the 19th century, for instance in Brussels 1874.8 Two of the most prominent and well-known peace conferences were held in The Hague in 1899 and 1907.9 The argument began to prevail that only defensive wars were legitimate, i.e. a state had the right to defend itself against an aggressor, but it must not be an aggressor itself. Therefore, it was seen as a violation of international norms that Germany attacked Belgium in 1914; and moreover it was a breach of the multinational Belgian neutrality treaty of 1839.10 The German attack was carried out in accordance with the Schlieffenplan, elaborated many years earlier with the aim of quickly circumventing the French military forces; in order not to get stuck in a two-front war with Britain and France in the West and Russia in the East, Germany tried to ob6 7 8

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Rome Statute of the International Criminal Court (17 July 1998), U.N. Doc. A/CONF. 183/9*. Into force in 2002. Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations. Basic Books, Harper Collins Publishers, New York, 2nd Ed. 1992. Thomas Erskine Holland, A Lecture on the Brussels Conference of 1874 and other diplomatic attempts to mitigate the rigour of warfare. James Parker and Co., Oxford and London 1876. Arthur Eyffinger (ed.), The 1899 Hague Peace Conference: The Parliament of Man, the Federation of the World. Kluwer Law International, Dordrecht 1999; Yves Daudet (ed.), Topicality of the 1907 Hague Conference, the Second Peace Conference. Hague Academy of International Law, Martinus Nijhoff Publishers, Leiden and London 2008. Taylor, 1993, p. 12.

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tain a quick victory in the West, thereby violating Belgium’s neutrality. But the act of violation was not a crime, or was it? In the interwar period and in the beginning of the Second World War, a similar situation occurred. In a situation of peaceful and trustful international relations the Briand-Kellogg Pact was signed in Paris in 1928 in which the parties “condemned recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in relations with one another” (Art. 1), and they agreed “that the settlement or solution of all disputes or conflicts … shall never be sought except by pacific means.” (Art. 2).11 Despite the clear words of the pact, which Germany had joined, Germany repeated its attack on Belgium in 1940, as well as on a number of other countries. Once again a pact meant to protect the peace was violated, but was it a crime, and if it was a crime, how should it be punished? Thus, the weak point of the treaties was that there was no mechanism for enforcement of sanctions against the perpetrators. While there was no clear legal basis in international law for trying states and/or heads of states for initiating aggressive wars, there was beginning to emerge an international consensus for creating a legal framework for placing responsibility and sentencing crimes committed under the designation war crimes. It had been known since ancient times that exceptional cruelty by war lords had been punished, but it was only sporadic, while the mainstream in handling defeated armies and peoples was plundering, raping, arson, etc. This practice was, among other things, remuneration for the mercenaries, but during the 19th century the need for more disciplined armies appeared and thereby also more discipline among the soldiers. Furthermore, it was recognized that protection of prisoners of war was beneficial for both sides.12 One of the breaking points in the development of the rules of war was the adoption, on the initiative of President Abraham Lincoln, in the USA of General Command No. 100 (1863), also called the Lieber Code.13 It prescribed how the Union’s soldiers should behave during the conduct of war, observing humanitarian rules. After the American Civil War (1861-65), however, only one trial 11

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Kellogg-Briand Pact, quoted from Michael R. Marrus, The Nuremberg War Crimes Trial 1945-46. A Documentary Story. Bedford/St. Martin’s, Boston and New York 1997, 14-15. The pact itself was remarkably short, consisting of only one page and three articles. Timothy L. H. McCormack, From Sun Tzu to the Sixth Committe: The Evolution of an International Criminal Law Regime, in Timothy L. H. McCormack and Gerry J. Simpson (eds.) The Law of War Crimes. National and International Approaches. Kluwer Law International, The Hague, London and Boston 1997, p. 40-43. Named after Francis Lieber (1798/or 1800 – 1872), Professor at Columbia Law School, previously serving in the Prussian Army, but subsequently emigrated to USA.

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was carried out, i.e. against the commander of Andersonville prison camp in Georgia, Henry Wirtz, who was sentenced to death and hanged in 1865.14 Nevertheless, during the 19th century, military manuals for soldiers became much more widespread, and it became internationally recognized that certain humanitarian standards for the conduct of war should be observed.15 Thus war crimes were put on the agenda after both world wars, in 1918 due to what might be called normal war crimes, such as for example the German mistreating of Belgium civilians, in 1945 due to the extraordinarily abhorrent behaviour of, for example, the German troops and Einsatzgruppen linked with racial war on the Eastern Front. In contrast to crimes against peace and war crimes, there was no long history of the concept of crimes against humanity. Although atrocities have taken place innumerable times during history, crimes against humanity as a specific term for extraordinarily violent behaviour against a larger part of a country’s own population appeared for the first time in 1915 on the basis of the Turk’s cruel treatment of the Armenian population. Although many of the atrocities took place in inner Anatolia, information began to spread and, for instance, the American ambassador in Constantinople, Henry Morgenthau, Sr., reported about it: “Persecution of Armenians assuming unprecedented proportions. Reports from widely scattered districts indicate systematic attempt to uproot peaceful Armenian populations and through arbitrary arrests, terrible tortures, whole-sale expulsions and deportations from one end of the Empire to the other accompanied by frequent instances of rape, pillage, and murder, turning into massacre, to bring destruction and destitution on them.” And further “They have annihilated or displaced at least two thirds of the Armenian population and thereby deprived themselves of a very intelligent and useful race.”16 On the initiative of Russia, a declaration issued by Russia, Britain and France and published on 24 May 1915 was presented to the Turkish government: “For about a month the Kurd and Turkish population 14

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Meredith, Roy (ed.), This Was Andersonville. Bonanza Books, New York 1957; Ovid L. Futch, History of Anderssonville Prison. University of Florida Press, Gainesville 1968, p. 113-122; McCormack, 1997, p. 42; and War Department, The Court Martial of Henry Wirz. General Court Martial Orders No. 607. November 6, 1865. Washington 1865. (http:// www.civilwarhome.com/findingsofcourt.htm). Concerning the development of military manuals, see Georg Schwarzenberger, International law as applied by international courts and tribunals. Vol. II. Stevens and Sons Ltd., London 1968. Henry J. Morgenthau, Sr. (10 July and 4 November 1915), quoted from Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton University Press, Princeton, 2000, p. 366, n. 11, and p. 368, n. 57.

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of Armenia has been massacring Armenians with the connivance and often assistance of Ottoman authorities. (…) At the same time in Constantinople Ottoman Government ill-treats inoffensive Armenian population. In view of these new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime Porte that they will hold responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.”17 As a matter of fact, the term crimes against humanity – in the sense of an attempted annihilation of a whole group of a population – was in reality what would later be called genocide by the Polish-American lawyer, Raphael Lemkin.18 Nevertheless, the declaration by the three allied governments in 1915 promised to prosecute Turks for crimes against humanity, and crimes against humanity were also part of the indictment in Nuremberg and Tokyo after the Second World War. These were the three major crimes that the Allied Powers needed to decide upon after the first and second world wars. There was general consensus that they were crimes, but there was no internationally recognized legal framework upon which to build a case. The question remained, therefore, on how to deal with the crimes, and especially what kind of measurement should form the basis for decision-making.

Scale of Measurement In order to establish a scale of measurement against which it would be possible to decide upon how to handle the defeated enemies, and lacking a contemporary international legal framework, the Allied Powers had to find precedents in history.19 One of the most relevant examples when comparing the magnitude and duration of the wars was – for Britain in 1918 – to look at the destiny of Napoleon who was exiled to St. Helena in 1815. It was a political 17

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Quoted from Bass, 2000, p. 117. In an earlier draft, prepared by the Russian foreign minister, Sergei Sazonov, the formulation “crimes committed by Turkey against Christianity and civilization” was used (Bass, 2000, p. 115). Raphael Lemkin, Axis Rule in Occupied Europe. Laws of Occupation, Analysis of Government, Proposals for Redress. Carnegie Endowment for International Peace. Washington 1944. (Second Edition by The Lawbook Exchange, Ltd., Clark, New Jersey 2008), Chapter IX. Genocide, p. 79-95. Although similar to norms and standards, scale of measurement has been deliberately chosen as a broader concept, because the Allied Powers were not only looking for a normative framework, but also for more practical examples and precedents: what did they do earlier, and what can we do today?

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decision of a comparatively mild nature, because he might just as well have been executed, but honouring Napoleon’s achievements as a great general, his immediate opponent, the British general Wellington, the victor of Waterloo, was strongly against execution.20 Also in 1944-45 the British drew a historical lesson. Due to the failures of the trials in Leipzig and Constantinople after the First World War, Britain rejected the idea of an international criminal tribunal for the Nazi leaders. Another way of finding a scale of measurement was to look into theories of punishment. The crimes committed were of such gravity that it was impossible not to react, and there were many arguments for punishment such as retribution, elimination and prevention. Retribution was simply to take revenge and pay back to the perpetrator what he deserved for the crimes he had committed. Elimination of the threat was to ensure that the perpetrator could not repeat his crime, either by execution, imprisonment or deportation. Prevention could be divided into special prevention and general prevention, i.e. the person in question, due to fear of new punishment, would not himself repeat the crime, nor would others. For whatever of the abovementioned reasons, and all of them were brought forward to a varying degree by different actors, punishment was high on the agenda after both world wars. However, a dividing line existed between legalism and power manifestation. It was possible to punish with and without having a legal basis. While power manifestation such as execution of enemy leaders, imposing harsh reprisals, demanding huge compensation and obtaining territorial gains, and based on a political decision by the victor, had been an old tradition going back to ancient times, legalism was another and comparatively new trend based on ideas of justice for all (including the defeated enemy), the rule of law and human rights. It is not the task here to trace the origins of such a normative approach, but it is evident that it existed both in the beginning and middle of the 20th century. These legal norms shaped the perceptions of Britain and France (and Belgium) after the First World War and gave them the idea of an international criminal tribunal in order to prosecute high-ranking Germans, including the emperor Wilhelm II, for having started the Great War, and officers and soldiers for having committed war crimes. Likewise, a number of Turks should be prosecuted for atrocities against the Armenians and for war crimes against allied soldiers and prisoners of war. The conditions were formulated in the Treaties of Versailles (24 June 1919) and Sevrés (10 August 1920), respectively. The USA was, however, much more hesitant. It signed the Treaty of Versailles with a lot of reservation and did nothing to promote the 20

Bass, 2000, p. 39.

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idea of an international criminal tribunal for various reasons to which we shall return in the next section.21 Legalism also prevailed when high-ranking Nazi-Germans and Japanese were put on trial at the International Military Tribunals in Nuremberg (194546) and Tokyo (1946-48). But as we shall see, the establishment of the Nuremberg tribunal took place only after a very close run in the narrowest circles of the US government. Legalism was not a popular norm when the enormous magnitude of the German atrocities became widely known by the end of the Second World War. Retribution and punishment were the names of the day, no benefit of a trial should be given, and no risk of propaganda or martyrdom in the courtroom could be tolerated. How things developed and how perceptions were shaped among the Allied Powers and between them is the topic to which we shall now turn. The actual historic developments can be explained when the choices to be made on the basis of the scale of measurement met with the disturbances of real life.

Disturbances At least three disturbances of relevance for the shaping and subsequent reversal of perceptions between the USA and Europe can be identified. They consisted of pragmatism, sheer coincidence and a narrow power struggle in high-level decision-making structures. Although it can be asserted that these elements will always play some kind of role in almost any situation, and therefore they might be too general in nature, it will nevertheless be argued that they give important characteristics for the specific historic circumstances and thus also the problem under investigation. The First World War One of the most important features of the situation in Europe in 1918-19 was war weariness; the political situation regarding many of the new states emerging from the dissolved empires was confused, and the military situation was floating with civil wars, revolutions and unsolved conflicts in many places in Eastern Europe and the Near Orient. All the great powers involved in the war, perhaps with the exception of the USA, had suffered colossal human and material losses. The Peace Conference in Paris in 1919 had an enormous task 21

The USA had not been at war with the Ottoman Empire and was therefore not part of the Treaty of Sevrés.

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to solve, and at the same time ongoing conflicts tapped the already limited resources. Due to the complexities and general weariness a certain amount of pragmatism was necessary. It played an important role when the Allied Powers were faced with a possible decision on enforcement of the international criminal tribunals they initially wanted, when their idea met with strong resistance in both Germany and Turkey. While it was more or less easy to agree upon the right of states to prosecute enemy soldiers who had committed war crimes on the territory of that state according to national law, things became more difficult when the crimes were related to several states. “At the root of the conflict was the Americans’ opposition to international adjudication proposed by the British and French.” (Marrus).22 A Commission of Responsibilities of the Authors of War and the Enforcement of Penalties, appointed already on the second day of the Paris Peace Conference with participation of representatives from the USA, Britain, France, Italy and Japan, came up with a report on 29 March 1919 containing the recommendation that charges should be raised against persons, “without distinction of rank, including the heads of States,”23 at a High Tribunal for crimes related to more than one country. The Americans could not accept an international criminal tribunal without an already established legal basis in international law, thereby making judgments ex post facto, and the US Secretary of State, Robert Lansing, issued a Memorandum of Reservations to the Majority Report which also gained support from Japan.24 The USA was of the opinion that the Commission had exceeded its mandate and the USA was furthermore against the vague concept of crimes against humanity: “A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity.”25 Notwithstanding its reservations, the USA reluctantly signed the Treaty of Versailles containing four articles (227-230) of relevance for prosecution of 22 23 24

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Marrus, 1997, p. 3. Commission of Responsibilities, Majority Report (29 March 1919), quoted from Marrus, 1997, p. 7. United States Representatives on the Commission of Responsibilities, Memorandum of Reservations to the Majority Report (4 April 1919), quoted from Marrus, 1997, p. 8-10. Lansing’s objections to the Allies’ proposals for international war crimes trials became so frequent that at one meeting, when Lansing was absent, the British representative jokingly said that he would make a reservation on behalf of the United States! (Bass, 2000, p. 101). See also McCormack, 1997, p. 47-48. Memorandum of Reservations…, quoted from Marrus, 1997, p.10.

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German perpetrators.26 Article 227 was directed at the German ex-Emperor and in order to prosecute him the Allied Powers wanted him extradited from The Netherlands: “The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offense against international morality and sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defense. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy, and Japan. (…) The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.” Article 228 was related to extradition from Germany of all other suspects of war crimes: “The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. (…) The German Government shall hand over to the Allied and Associated Powers, or to such one of them that shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities.” Article 229 dealt with the distinction between those who had committed crimes against more than one of the Allied Powers and only one of the Allied Powers, as well as granting entitlement to the defendant to name his own counsel: “Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel.” Article 230 demanded that Germany should cooperate in the proceedings: “The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders, and the just appreciation of responsibility.” Nothing came of extraditing the ex-Emperor. After all, the Allied Powers were divided on the question. France and Belgium were strongly in favour, while Britain became more hesitant, and the USA did not seriously care about 26

The texts of Articles 227-230 are given in, e.g., the collection of documents by Marrus, 1997, p. 10-11.

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the matter. No strong pressure was put on The Netherlands, on the contrary, hints were given that the demand was pro forma and no force would be used. Therefore The Netherlands could refuse the request “on the legal ground that the offense charged against the Kaiser was unknown to Dutch law, was not mentioned in any treaty to which Holland was a party, and appeared to be of political rather than criminal character.”27 The ex-Emperor lived in his castle in Doorn until he died in 1941. The Leipzig Trials Much more drama was connected with Article 228, which became a matter between the European Allied Powers and Germany, while the USA was not involved. President Wilson did not succeed in getting the US Senate to ratify the Treaty of Versailles; he died a few years later (1924) and the USA held an isolationist course during the interwar period. A list of 854 names was presented (3 February 1920) to Germany with a number of high ranking and famous military and political persons.28 In reality, due to the many atrocities on French and Belgium soil, especially these two countries would have put more names on the list, and it was very difficult to shorten it down to the agreed number. On the other side, Germany was extremely agitated, not only about such a long list, but especially about extraditing any of its citizens to a foreign criminal tribunal for prosecution. Germany then came up with a much shorter list of only 45 names and proposed that they be tried at the German Supreme Court in Leipzig. Despite French and Belgium dissatisfaction, Britain persuaded them to accept the German proposal, and a year later the trials began. They proved however to be a complete fiasco, seen from the point of view of the Allied Powers.29

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Taylor, 1993, p. 16. There is uncertainty with regard to the accurate number of alleged criminals presented to Germany. Different historians give different figures, for instance 896 (McCormack, 1997, p. 49, n. 79) and 854 (Willis, 1982, p. 120). According to Willis the difference is explained by the fact that individual names appeared on more than one of the sublists presented by each of the offended countries, and by subtracting the repetitions he reaches 854. James F. Willis, Prologue to Nuremberg. The Politics and Diplomacy of Punishing War Criminals of the First World War. Greenwood Press, Westport and London 1982, p.126147; Alan Kramer, “The First Wave of International War Crimes Trials: Istanbul and Leipzig.” European Review, Vol. 14, No. 4, 2006, p. 441-455; Bass, 2000, p. 58-105; McCormack, 1997, p. 48-95; and Taylor, 1993, p. 16-18.

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The first trial was a British case against four Germans, three of whom were accused of mistreatment of British prisoners, while the fourth was a U-boat commander who had sunk a British hospital ship. The three first mentioned received sentences of six to ten months, while the U-boat commander was acquitted because of superior orders. The next case was Belgium against a German military policeman accused of torturing small children, but he was acquitted, after which Belgium became so angry that it left the court and refused to participate any more. Then there was a French case against a German General and a Major accused of denying quarter and murdering French prisoners. The Major admitted the act but excused himself on the grounds that he had obeyed a superior order from the General. The General denied the charge and was acquitted while the Major was sentenced to two years imprisonment. Thereafter the court acquitted four other Germans accused by the French. The trial was very turbulent, and France, like Belgium, refused to participate further. Britain had listed for trial another U-boat commander accused of sinking a hospital ship and destroying two lifeboats containing survivors (a third lifeboat crew escaped in the dark and was thus able to tell the story). However, unfortunately for Britain, the U-boat commander had disappeared and could not be found. Thus, in total only 12 cases were brought forward by the Allied Powers, and the accused were either acquitted, given short sentences or had disappeared. In connection with the last case, Germany on its own initiative, charged two subordinates, claiming that they knew that the order of attacking the lifeboats was unlawful, and they were sentenced to four years of imprisonment. However, within a few months both of them escaped, apparently with the help of the prison guards. This incident naturally added to the Allied Powers disbelief in Germany’s genuine will to get justice done. Different opinions emerged among the Allied Powers. While France pressed for sanctions against Germany, Britain remained calmer and took a longer perspective. France wanted harsh punishment of the war criminals, compensation for war damages, and protection against its neighbouring country and century-long enemy. Britain was more moderate, being aware of the economic and political crisis in Germany, the potential for revolution and influence from the Soviet Union. With regard to the Leipzig trials, a compromise was reached, i.e. an allied note was sent to Germany declaring the Supreme Court’s decisions invalid and reserving all rights under the Treaty of Versailles. Thus, further trials remained possible but were in reality postponed infinitely. In order to enforce

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Articles 228-230, the Allied Powers in practice had to invade Germany. This was not very likely given the war weariness.30 Although the Leipzig trials have generally been regarded as a fiasco (scandal and juridical farce are other designations), they nevertheless, as pointed out by McCormack, contributed with a least some positive elements to the historic development of the international law of war crimes in so far as it was recognized by the German Supreme Court that it was a crime against the “law of nations” to kill defenseless survivors in lifeboats and two lieutenants were sentenced accordingly.31 Furthermore, although not successfully implemented, charges for individual criminal responsibility and command responsibility were brought forward, and it was questioned whether superior orders could free people from criminal responsibility of their actions. The Trials in Constantinople The situation in Turkey was complicated.32 In October 1918 the Ottoman Empire had surrendered to Britain and signed an armistice. The Sultan was cooperative vis-à-vis the British wish of punishment of Turks who had committed war crimes or participated in massacres on the Armenians, and military tribunals were established in 1918 and 1919. Two persons were sentenced in April 1919, one of them, Major Mehmet Tevfik, got 15 years of hard labour, while the other, District Governor Mehmet Kemal, was sentenced to death and hanged on 10 April 1919, which provoked strong nationalist sentiment: “This death sentence sparked a blast of nationalist unrest” (Bass).33 Kemal was perceived by many Turks as a martyr, and big demonstrations took place in Constantinople and other places in Turkey. Unrest began to surface in the inner parts of Anatolia and one of the Turkish army officers, Mustafa Kemal (Atatürk), was sent to suppress the riot and get control of the situation. However, he chose instead not only to join the nationalist uprising, but became its leader, leading in a few years to the fall of the Sultanate and creation of the new Turkey in 1923.

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31 32 33

According to Marrus, it was a major tactical error not to have formulated a mechanism for punishment of war criminals in connection with the armistice in 1918 but to leave it to the Peace Conference to negotiate with Germany and between the allies themselves (Marrus, 1997, p. 3). McCormack, 1997, p. 50. Bass, 2000, p. 106-146; and Kramer, 2006, p. 441-455. Bass, 2000, p. 125.

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The tribunals set up in Constantinople proved to be a disaster. They were used also in the internal political struggle in Turkey. The imprisoned suspects were composed of at least three different groups, including people suspected of war crimes and crimes against humanity as well as political prisoners. Gradually, with the increasing strength of the nationalist movement, and in order to appease the nationalists, the Ottomans began to free some of the prisoners. Others succeeded in escaping, and the most severe sentences were given in absentia. The trial had not convinced Turks that they had done wrong during the war. Even the Ottoman Government’s supporters “regard executions as necessary concession to Entente rather than as punishment justly meted out to criminals,” said Admiral Somerset Calthorpe, the British high commissioner in Constantinople.34 According to a foreign diplomat, “not one Turk in a thousand will think that any other Turk deserves to be hanged for massacring Christians.”35 Due to the uncertain conditions under which the prisoners were held and the high risk of them escaping, on 28 May 1920 the British military deported 68 Turks from Ottoman custody to British detention at Mudros and Malta. However, it proved difficult to find evidence against the suspects and gradually the British began to have doubts about how long it would be possible to retain them in prison without bringing them to court. Furthermore, there was a problem with incompetence because the lists with names were often misleading due to vague or incorrect descriptions or misspelling of Turkish names. The British realised that 22 of the imprisoned on Malta most probably were innocent.36 “By July, the War Office had given up on the Ottoman trials.” (Bass)37 Instead Britain hoped for better results by means of the Treaty of Sèvres, signed in August 1920, which similarly to the Treaty of Versailles contained provisions on war crimes. In relation to mistreatment of Allied prisoners of war, those Turks “guilty of criminal acts against the nationals of one of the Allied Powers shall be brought before the military tribunals of that power”, while those accused of “the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire” should face an international criminal tribunal.38 However, the Treaty of Sévres was not ratified and the provisions never materialised because the Allied Powers lost political and military control while the nationalist forces grew stronger during the next couple of years. 34 35 36 37 38

Calthorpe, quoted from Bass, 2000, p. 126. Bass, 2000, p. 126. Bass, 2000, p. 133-34, 138. Bass, 2000, p. 129. Quoted from Bass, 2000, p. 139.

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What further led to the downfall of the trials was the imperialist greediness of some of the co-players in the partition of the Ottoman Empire. Both Greece and Italy had territorial demands in Asia Minor. Italy was promised territory in Asia Minor and on the Adriatic coast when it entered the war on the allied side in 1915; however, it met with resistance in the Paris Peace Conference, partly with reference to one of Wilson’s 14 points, i.e. on national self-determination, and therefore Italy left the Peace Conference in April 1919, leaving the scene for Greece. With support from the British Prime Minister, Lloyd George, the charismatic Prime Minister of Greece, Eleftherios Venizelos, succeeded in getting approval of his far-reaching territorial demands, potentially making the Aegean Sea an inland sea of Greece. In 1920 Greece landed military troops in Smyrna and started an offensive moving from the costal areas up to the highland and further towards inner Anatolia. However, the offensive lost steam and the Turkish counter-attack sent the Greek forces back to Smyrna, furthermore leading to the great catastrophe in September 1922 when Smyrna was destroyed and the Greek population together with Jews, Armenians, Levantines and others were expelled or massacred, partly as retribution for Greek atrocities when the Greek troops retreated earlier in 1922.39 It was shortly afterwards, in 1924, followed by a comprehensive exchange of all Greeks and Turks between the two countries. The power relationship had now changed completely, and a new Treaty of Lausanne was negotiated and signed (24 July 1923) to supersede the Treaty of Sèvres from 1920. The new treaty granted impunity for all those involved in war crimes and crimes against humanity. Forgotten were the massacres of the Armenians.40 If the Allied Powers wanted to enforce their wishes of punishment of Turkish atrocities from 1915 and further on, they would have to enforce them by military means. However, due to exhaustion and war weariness it was impossible.41 It was also a case of coincidence. Had the Greeks not been so over-ambitious in their imperialistic greediness, and stayed by the coast, for instance around Smyrna where there was a Greek majority of population, then the 39 40

41

Giles Milton, Paradise Lost: Smyrna 1922 – The Destruction of Islam’s City of Tolerance. Spectre, London 2009. Several of the prominent young Turks involved in the massacres of the Armenians nevertheless met their fate a few years later. Although they escaped from Turkey, Talat Pasha was killed by an Armenian in Berlin in 1921, Kemal Pasha was killed by three Armenians in 1922, while Enver Pasha was killed in battle with the Bolsheviks in Bukhara in 1922. (Helle Schøler Kjær, Danske vidner til det armenske folkemord 1915. Forlaget Vand kunsten, København, 2010, p. 141). Britain had quickly demobilized and brought down their troops in Turkey from one million to 320,000 in the summer of 1919 (Bass, 2000, p. 127).

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centuries old multicultural coexistence and economic prosperity might have continued, and things might have developed much more peacefully. In that situation preconditions for the continuation of a criminal tribunal would have been in place, and the Armenian genocide might not have been forgotten. Clearly, this interpretation is leaning on contra-factual history, but seen from the point of view of the Allied Powers it was a coincidental event (a non-significant battlefield far from central Europe) that contributed to shaping their decision, leading up to the Treaty of Lausanne where the demands for punishment were abolished and impunity granted to all suspects of war crimes and crimes against humanity. Another case of coincidence that influenced the events was the hostagetaking in 1920 by the nationalist Turks of a group of British soldiers and civilians, 29 in total. It was a comparatively small event but it happened at a crucial time and led to the exchange of the British hostages and a number of imprisoned Turks charged for war crimes and atrocities against Armenians. According to the British War Office “it is vastly more important to save the lives of these British subjects than to bind ourselves by the strict letter of the law as regards the Turkish prisoners at Malta.”42 According to a Foreign Office official, Lancelot Oliphant, “It is in a measure yielding to blackmail but seems justified by present conditions.”43 One of the hostages happened to be Alfred Rawlinson, a younger brother to the influential commander of British forces in India, Major General Lord Rawlinson, who naturally tried to use his influence in getting release of the hostages and pay the necessary price. “Rawlinson’s freedom was brought by selling out a substantial amount of international justice. All 59 remaining Turks were freed, without distinctions among political and military prisoners, alleged abusers of British prisoners of war, and accused murderers of Armenian civilians.” (Bass)44 The Armenians were also forgotten in another way. The areas inhabited (or previously inhabited) by Armenians became part of Turkey and the Soviet Union, respectively. The Armenians, like many other nationalities, wanted an independent state (it was recognized by the Treaty of Sevrés, Articles 88-93). But the question was: who would protect an Armenian state located somewhere in Anatolia? The USA was proposed by the Allied Powers to hold a mandate over Armenia, just as Britain and France received mandates in the Middle East, but even if the USA officially supported national self-determination it was not interested in getting stuck with military obligations in 42 43 44

Bass, 2000, p. 141. Bass, 2000, p. 142. Bass, 2000, p. 143.

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Armenia. 45 The lost memory of the Armenian tragedy was exposed two decades later, although kept secret at that time, when Adolf Hitler, at a meeting on 22 August 1939 with military chiefs in Obersalzburg, made the following statement: “The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the vital living space that we need. Who today still speaks of the massacre on the Armenians?”46 The British became so humiliated that they seemingly repressed their memory of Constantinople. During the planning of the Nuremberg trials, when the British looked for precedents, they looked at the farcical trials in Leipzig and even the exile of Napoleon to St. Helena; but nobody mentioned Constantinople.47 The Interwar Period Although no breakthrough was obtained in the interwar period with regard to establishing an international criminal court, time was not standing still, and a few relevant attempts can be mentioned in order to clarify the situation just before the Second World War. The USA was not a member of the League of Nations and therefore did not participate in the work on the establishment of an international criminal court within the framework of that organisation.48 In the early 1920s, attempts were made to formulate a statute for an international criminal court (called a High Court of International Justice), and an Advisory Committee of Jurists appointed by the Council of the League of Nations formulated a proposal to that effect, but it was never adopted, basically because it was considered “premature”.49 Neither did the work of the International Law Association in the years 1922-26, which materialized in a draft statute for a new Interna45 46

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MacMillan, 2004, p. 463-465, 469, 472. Samantra Powers, A Problem from Hell. America and the Age of Genocide. Harper Perennial, New York 2003, p. 23; and William A. Schabas, Genocide in International Law. Cambridge University Press, Cambridge 2000, p. 1. Bass, 2000, p. 144. Irony of fate, although the idea of an international League of Nations came from US President Woodrow Wilson and was strongly promoted by him, not least during the peace conference in Paris 1919, he did not succeed in getting the required two-third majority of votes in the US Senate. A Permanent Court of International Justice (1922-1946) was established with the purpose of arbitration of conflicts between states on a voluntary basis. One of the proposals raised was to establish a criminal court as a separate chamber within the Permanent Court, but it also fell short.

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tional Penal Court, succeed in the international recognition and actual establishment of an international criminal court.50 A new attempt was made in the late 1930s, inspired by the assassination of the King of Yugoslavia, Alexander, during a visit to Marseilles in 1934. It actualised the question of terrorism and how to deal with this problem. Within the framework of the League of Nations preparations were made in 1936-37 and a convention against terrorism was presented and adopted during a conference in Geneva in 1937, simultaneously with the presentation of a statute for an international criminal court, the jurisdiction of which was limited to terrorism. Not all of the state parties who were interested in signing the convention were also willing to sign the statute, therefore two documents were prepared. It was possible to sign the convention without signing the statute, but not the other way round: signing the statute could not be done without signing the convention.51 However, shortly before the Second World War, time was running out for the initiative. Although both the convention and statute were signed by a number of states, none of them were ratified (except that the convention was ratified by one state), and they never went into force.52 It was only after the huge atrocities committed during the Second World War that an international criminal court once more was put high on the international agenda. The Second World War During the Second World War, and along with getting access to more information about Nazi-German atrocities, the three major Allied Powers, the USA, Britain and the Soviet Union, had a strong sense that the perpetrators should be punished, but how that more precisely should happen was not clear.53 They seemed to agree that tribunals should be established by individ50

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Benjamin B. Ferencz, An International Criminal Court. A step toward World Peace. A documentary history and analysis. Oceana Publications, Inc., London, Rome, New York 1980, p. 25-54; and McCormack, 1997, p. 51-55. League of Nations, Proceedings of the International Conference on the Repression of Terrorism. Geneva, November 1st to 16th, 1937. Series of League of Nations Publications, C.94.M.47.1938.V. Geneva 1938. By 31 May 1938, 19 states had signed the Convention on Terrorism, while 13 states had signed the Convention for the Creation of an International Criminal Court. A few more states added their signature in 1972. Only one state (India) ratified the Convention on Terrorism, while the other convention was not ratified by any state. Neither convention went into force. Bass, 2000, p. 147-205; Ferencz, 1980, p. 54-66; McCormack, 1997, p. 55-58, Taylor, 1993.

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ual countries where crimes have been committed, but it was left open what to do with major criminals whose crimes were not connected with a particular territory. The wording of the Moscow Declaration (1 November 1943), signed by Roosevelt, Churchill and Stalin, was non-committal: (…)”the case of the major criminals whose offenses have no particular geographical location and who will be punished by a joint decision of the Governments of the Allies.”54 Based on the bad experience with the Leipzig trials, Britain now favoured the idea that an international criminal tribunal should not be established; it would be better simply to execute the major criminals, i.e. those whose crimes had no particular geographic location, without a trial. Churchill mentioned a number of about 50 of such persons to be shot immediately after they have been captured and identified. According to the British viewpoint, an international criminal court would take too long to establish, it would be too difficult to handle in practice, and the court might provide a platform for Nazi propaganda for such articulate persons as Hitler and Goebbels.55 They hoped that part of the problem would solve itself, either if the high-ranking Germans were killed during the last days of the war or if they committed suicide. This hope would partly be fulfilled, for example in the case of Hitler, Goebbels and Himmler, but in the summer of 1945 there still remained a sufficiently large group of top Nazis captured alive to be dealt with. Another argument brought forward was that the crimes committed were of such grave character that they were outside and above normal jurisdiction; these arch-criminals or grand criminals as they were called were in a class of their own. A curious incident happened between Stalin and Churchill at the meeting between the leaders of the Allied Powers in Teheran (29 November 1943). Trying to tease the British Prime Minister, the Soviet leader Stalin proposed that the whole German General Staff must be liquidated. According to Churchill’s memoirs, Stalin said that the whole force of Hitler’s mighty armies depended upon about 50,000 officers and technicians. If these were rounded up and shot at the end of the war, German military strength would be extirpated.56 It was probably meant as a joke, but Churchill took the figure 50,000 seriously

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Taylor, 1993, p. 27; and Marrus, 1997, p. 21. A famous precedent being Hitler’s defence at the trial for treason, after the Beer Hall Putsch in 1923, at a special court in Munich, starting on 26 February 1924: “By the time it had ended 24 days later Hitler had transformed defeat into triumph, (…) Hitler at once grabbed the limelight for himself. From beginning to end he dominated the courtroom.” (William Shirer, The Rise and Fall of the Third Reich. Fawcett Crest, Ballantine Books, New York 1992, p. 114). Marrus, 1997, p. 22-23; Taylor, 1993, p. 29-30.

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and became very angry, until he was calmed down by Stalin and others present at the meeting. What finally settled the question of establishing the Nuremberg trial in 1945-46 was a close power-struggle in the inner circles of the American government, ending up with an American decision of giving the suspected German arch-criminals the benefit of a trial. When the USA, after a long period of hesitation with regard to its war crimes policy, finally made up its mind and put resources into the process, it proved decisive for the further development. For a long time it was, however, not likely that it would end like that. One proponent of harsh measures, and at the same time one of the persons closest to President Roosevelt, was the Secretary of the Treasury, Henry Morgenthau, Jr. (who happened to be the son of the previously mentioned US ambassador in Constantinople). He favoured not only immediate execution of German arch-criminals but also destruction of Germany as an industrial nation in order to eliminate once and for all the German militarism. In a Memorandum to the President (4 September 1944) he proposed the following scheme: A list of arch-criminals of this war whose obvious guilt has generally been recognised by the United Nations shall be drawn up as soon as possible and transmitted to the appropriate military authorities. The military authorities shall be instructed with respect to all persons who are on such list as follows: (a) They shall be apprehended as soon as possible and identified as soon as possible after apprehension, the identification to be approved by an officer of the General rank. (b) When such identification has been made the person identified shall be put to death forthwith by firing squads made up of soldiers of the United Nations.57 At the same time, military commissions would only be reserved for suspects of the second rank. One of the most important problems with Morgenthau’s scheme was how precisely to distinguish between those to be shot and those to receive the benefit of a trial. It was continuously a problem: “No principled line could be drawn between those who would and those who would not be given the opportunity to defend themselves before a court. Summary execution looked like a simple way out of troublesome problems, but it was out of tune with the times. Too many people believed that they had been wrongfully 57

Henry J. Morgenthau, Memorandum to the President (4 September 1944), quoted from Marrus, 1997, p. 24-25.

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hurt by the leaders of the Third Reich and wanted a judgment to that effect.”58 (Taylor) With regard to Germany’s economic recovery after the war it should only take place to a very limited degree. Morgenthau’s principal goal was to dismantle German industrial capacity so as to prevent the country from ever disturbing world peace again. The German people should be turned into “an agricultural population of small land-owners.”59 The harsh measures contained in Morgenthau’s plan met with strong resistance by the Secretary of War, Henry L. Stimson. He saw Morgenthau’s plan as a disaster for peace and prosperity. He proposed a policy that sought to promote economic recovery and industrial development by utilising German industrial capacity instead of destroying it. The war crimes policy had to be part of such a constructive approach. Stimson presented to the President a Memorandum Opposing the Morgenthau Plan (9 September 1944) in which he stated: It is not a question of a soft treatment of Germany or a harsh treatment of Germany. We are all trying to devise protection against recurrence by Germany of her attempts to dominate the world. We differ as to method. (…) These resources constitute a natural and necessary asset for the productivity of Europe. In a period when the world is suffering from destruction and from want of production, the concept of the total obliteration of these values is to my mind wholly wrong. (…) The method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgment, at least the rudimentary aspects of the Bill of Rights, namely, notification to the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his defence. (…) the very punishment of these men in a dignified manner consistent with the advance of civilization, will have all the greater effect upon posterity. Furthermore, it will afford the most effective way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate and prevent its recurrence.

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Taylor, 1993, p. 33 (emphasis by the author). Marrus, 1997, p. 24.

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I am disposed to believe that at least as to the chief Nazi officials, we should participate in an international tribunal constituted to try them. They should be charged with offences against the laws of the Rules of War in that they have committed wanton and unnecessary cruelties in connection with the prosecution of the war. This law of the Rules of War has been upheld by our own Supreme Court and will be the basis of judicial action against the Nazis.60 During the Quebec Conference (12-16 September 1944) with Churchill (to which Roosevelt was accompanied by Morgenthau, but not Stimson), Roosevelt supported Morgenthau’s plan, but nevertheless the President did not finally make up his mind. “Indeed, because of Roosevelt’s disinclination to finish with the matter before the British and the Soviets seemed ready to do so, and in view of serious opposition to Morgenthau’s approach within his own administration, the president was prepared to let his principal lieutenants trash it out before deciding himself.”61 This gave Stimson time to prepare his case more carefully, which he did together with a group of likeminded lawyers in the following months and he gradually obtained the upper hand vis-à-vis Morgenthau’s plan. When Roosevelt died on 12 April 1945, his successor Harry S. Truman quickly accepted the idea of a trial. Thereafter the British opposition quickly dwindled. At a meeting in San Francisco (3 May 1945) between the British, American and Soviet foreign ministers, the British foreign minister Anthony Eden stated: “The War Cabinet still saw objections to a formal state trial of war criminals for the most notorious Nazis whose crimes had no geographic location. If, however, their two great Allies definitely wanted a juridical trial of such men, the British were willing to bow to them in the matter.”62 The Soviet Union was in favour of an international trial for high-ranking Nazis. But it was not in the same meaning as Henry Stimson had proposed; it should be a show trial to demonstrate the horror of the Nazi ideology and extermination policy and military occupation, and the outcome of the trial was given beforehand: all the accused criminals sitting in the dock were guilty and must be executed. When the Nuremberg proceedings (the International Military Tribunal 1945-46) ended with three acquittals and seven jail sentenc60 61 62

Henry L. Stimson, Memorandum opposing the Morgenthau Plan (9 September 1994), quoted from Marrus, 1997, p. 26-27. Marrus, 1997, p. 28. Anthony Eden, Memorandum of Conversation (3 May 1945), quoted from Marrus, 1997, p. 37.

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es and “only” 12 death sentences (including one in absentia), it could be seen as a victory for fair trial, but the Soviet judge dissented against the acquittals and jail sentences decided by majority vote by the three other judges from the USA, Britain and France.63 In principle, the International Criminal Tribunal in the Far East (Tokyo, 1946-48) against high-ranking Japanese criminals may also have been included to illustrate different views between the USA and Europe. However, the Tokyo tribunal was modelled on Nuremberg and thus there was no important disagreement between the USA and Europe about the establishment of such a tribunal, and the crimes to be prosecuted were the same as in Nuremberg (aggression, war crimes, and crimes against humanity). Neither is there anything to compare with in terms of previous experience because in 1918 Japan was not an enemy but an ally of the Entente, and there was no attempt at establishment of an international criminal court by the Entente against Japanese aggressors or war criminals. Furthermore, according to a number of critical historians, the trial in Tokyo was most of all a political power-demonstration by the USA and did not meet the requirements of fair trial, while Britain and other European states participating in the trial did not have much influence vis-à-vis the USA’s dominance.64 The trial in Tokyo may thus be seen as an example of how the USA did not live up to the high standards formulated by Henry Stimson, but it is not a topic which will be investigated further in this context.

Conclusion After the First World War, the USA was in favour of criminal proceedings against perpetrators of war crimes by means of national courts on the territory in which the crimes had been committed, but not by means of international criminal tribunals established ad hoc for the occasion. It was a principled decision based on the USA’s dislike of ruling ex post facto and a critical attitude against the vague concept of crimes against humanity. Although the USA reluctantly signed the Treaty of Versailles, it was not ratified in the US Senate. The USA was, however, not a principal opponent of the establishment 63 64

Taylor, 1993. Yves Beigbeder, Judging War Criminals. The Politics of International Justice. MacMillan Press Ltd., London 1999; Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials. Collins, London 1989; and Richard H. Minear, Victors’ Justice. The Tokyo War Crimes Trial. Princeton University Press, Princeton 1971.

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of an international criminal court. But it was not something that would happen with the USA’s active assistance in the foreseeable future, because the USA took an isolationist course in the interwar period, and the USA was not a member of the League of Nations in which a few attempts were made to establish an international criminal court at the beginning and the end of the interwar period. During and after the Second World War, the USA after much hesitation happened to end up with a decision of a principled nature based on rule of law and fair trial proceedings against the so-called arch-criminals, i.e. those high-ranking Nazi politicians and military personnel who were responsible for war-related crimes committed on the territory of more than one country. As can be seen, the USA had moved from its previous position in terms of national-international criminal courts, and in Nuremberg as well as in Tokyo the USA also accepted the “vague” concept of crimes against humanity. It was almost a case of coincidence, because it was the result of an intense power struggle in the narrowest circles of the US government, and the result might just as well been the opposite had it not been for Henry Stimson’s perseverance and insistence in giving the Nazi opponents the benefit of a trial, rather than simple retribution without trial. The expression “Stay the hand of vengeance” by the chief prosecutor at Nuremberg, Robert H. Jackson, has rightly become famous and became a symbol of fair trial and rule of law also in the case of the worst atrocities committed by so-called arch-criminals. In this, the USA chose to link up to a long-standing norm of human rights (Stimson referred to Bill of Rights). In 1918, Britain together with France and Belgium, had a strong perception of punishment of the persons who had started the war (“Hang the Kaiser”, was a pronounced and popular slogan during and after the war) and those who had committed war crimes. Also the Turkish atrocities against its Armenian population in 1915 were strongly condemned by Britain, France and Russia as crimes against humanity, and the Turks were also accused of war crimes. Any attempt to establish an international criminal tribunal was in vain, and the attempts to prosecute suspects in the national courts in Leipzig and Constantinople proved futile. Although court cases were carried out, the courts had no legitimacy in Germany and Turkey, and the proceedings were called farcical by the Allied Powers. In order to enforce “real” court cases either by national courts or an international criminal court or tribunal, the Allied Powers had to occupy the territories of their opponents, but the Allied Powers were dogged by war weariness. On top of that came sheer coincidences that made things worse, namely the Greek imperialistic adventure in Asia Minor, which proved to be a disaster (in this Britain also must share some responsibility, be-

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cause Britain encouraged the Greeks in their project), and the hostage taking of British soldiers. None of these situations had much to do with the perceived criminal proceedings on crimes related to the Great War, but in the given situation they had a very strong influence on the final outcome, and therefore we may call them coincidences. Contributing to the lack of enforcement of international criminal tribunals was also the fact that the Allied Powers began to look differently on the desirability of such cases. The strongest sentiment of punishment and compensation for war damages came from France and Belgium, on whose territories the fighting against Germany mainly had occurred. Britain, on the other hand, was more aware of the chaotic situation in Germany in the beginning of the 1920s with dangerous threats against the survival of the state and the perceived threat of Bolshevism from the East. The different perceptions contributed to the weakening of the idea of trials. When, during and after the Second World War, Britain needed to decide what to do with the Nazi criminals, it was the trauma of Leipzig that determined the decision of simply executing the group of top Nazis (the memory of Constantinople was apparently suppressed). When, however, the USA finally made up its mind with regard to the International Military Tribunal in Nuremberg, Britain could do nothing else but agree. But it was not a difficult decision for Britain, because it fell in line with the basic perception in 1918, and as we have seen in the little episode with Churchill and Stalin in Teheran 1943, Churchill strongly condemned mass executions. There were tight limits for executions. In the case of Russia, which initially was part of the Entente, Russia may have shared the idea of an international criminal tribunal against representatives from the Axis powers, but nothing came of that, because Russia had ceased to exist, and the new Soviet state had already made a separate peace agreement with Germany in 1918 before trials came on the agenda in Paris 1919. In 1945, the Soviet Union was favouring international criminal tribunals against Germany and Japan, and was thus supporting the American idea vis-à-vis Britain, but it was not in the USA’s and Britain’s meaning of rule of law and fair trial and presumed innocence until guilt has been proven; the Soviet Union favoured show-cases with presumed guilt and emphasis on pedagogical information about Nazi horrors. These basic differences were, however, dealt with during the Nuremberg proceedings, and despite criticism the Nuremberg trials in 1945-46 became a landmark in the development of international criminal law and a reference point for all subsequent efforts on the creation of an international criminal court. And before that, it was the hard experiences from Leipzig and Constantinople, and the development of various perceptions in the USA and Europe that contributed to that. In the longer

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perspective, for almost 50 years, the Cold War put an end to the further development of ideas in relation to the establishment of an international criminal court. The Balkan Wars related to the dissolution of the former Yugoslavia in the 1990s and the genocide in Rwanda in 1994 led to the establishment of two international criminal tribunals, both limited in time and geography, and it was only with the adoption of the Rome Statute in 1998 that a permanent International Criminal Court based on international law was established which came into force in 2002.

Literature and References Andersen, Erik André, The International Military Tribunals in Nuremberg and Tokyo – Epoch-making and standard-setting, yet with different effectiveness, in Ryngaert (ed.), 2009, p. 3-26. Andersen, Erik André, and Cecilie Felicia Stokholm Banke (eds.), “Internationale retsopgør”. Den Ny Verden, København 2008. Arendt, Hannah, Eichmann in Jerusalem. A Report on the Banality of Evil. [1963] Penguin Books, New York 1994. Auer, James E. (ed.), From The Marco Polo Bridge to Pearl Harbour: Who Was Responsible?, The Yomiuri Shimbun, Japan 2007. Ball, Howard, Prosecuting War Crimes and Genocide. The Twentieth-Century Experience. University Press of Kansas, Lawrence, Kansas 1999. Bass, Gary Jonathan, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton University Press, Princeton 2000. Bassiouni, M. Cherif, Introduction to International Criminal Law. Transnational Publishers, Inc. Ardsley, New York 2003. Beigbeder, Yves, Judging War Criminals. The Politics of International Justice. MacMillan Press Ltd., London 1999. Bjørnlund, Matthias, Det armenske folkedrab. Kristeligt Dagblads Forlag, København 2013. Brackman, Arnold C., The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials. Collins, London 1989. Choate, Joseph H., The Two Hague Conferences. Princeton University Press, Princeton 1913. Cooper, John, Raphael Lemkin and the Struggle for the Genocide Convention. Palgrave Macmillan, New York 2008. Dansk Røde Kors, Den humanitære folkeret og Danmark. Dansk Røde Kors’ Folkeretsudvalg, København 2006.

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Dark, James, The Trial of Major Henry Wirz. Justice Found or Lost? Sons of Confederate Veterans, Texas Division (n.y.) (http://www.texas-scv.org/histdocs_wirz.php). Daudet, Yves (ed.), Topicality of the 1907 Hague Conference, the Second Peace Conference. Hague Academy of International Law, Martinus Nijhoff Publishers, Leiden and Boston 2008. Dunant, Henry, Erindringer fra Solferino. Udgivet af Dansk Røde Kors, Afdelingen for København og Omegn, København 1936. Eyffinger, Arthur (ed.), The 1899 Hague Peace Conference: The Parliament of Man, the Federation of the World. Kluwer Law International, Dordrecht 1999. Fried, Alfred H., Die Zweite Haager Konferenz, ihre Arbeiten, ihre Ergebnisse und ihre Bedeutung. Verlag von B. Elischer Nachfolger, Leipzig 1907. Futch, Ovid L., The History of Andersonville Prison. University of Florida Press, Gainesville 1968. Ginsburgs, George, “Moscow’s Road to Nuremberg. The Soviet Background on the Trial.” Law in Eastern Europe, Vol. 47, Martinus Nijhoff Publishers, Leiden and Boston 1996. Hankel, Gerd, Die Leipziger Prozesse. Deutsche Kriegsverbrechen und Ihre Strafrechtlice Verfolgung nach dem Ersten Weltkrieg, Hamburger Edition HIS Verlagsesellschaft, Hamburg 2003. Hartigan, Richard Shelley, Lieber’s Code and the Law of War. Precedent, Chicago 1983. Heberer, Patricia and Jürgen Matthäus (eds.), Atrocities on Trial. Historical Perspectives on the Politics of Prosecuting War Crimes. University of Nebraska Press, Lincoln and London 2008. Henry Wirz Court Martial, Finding of the Court [1865]. (http://www.civilwarhome. com/findingofcourt.htm). Holland, Thomas Erskine, A Lecture on the Brussels Conference of 1874 and other diplomatic attempts to mitigate the rigour of warfare. James Parker and Co., Oxford and London 1876. Kjær, Helle Schøler, Danske vidner til det armenske folkemord 1915. Forlaget Vandkunsten, København, 2010. Kochavi, Arieh J., “Anglo-Soviet Differences over a Policy towards War Criminals, 1942-1943.” Slavic and East European Review, Vol. 69, No. 3, 1991, p. 458-477. Kochavi, Arieh J., “The British Foreign Office versus the United War Crimes Commission during the Second World War.” Holocaust and Genocide Studies, Vol. 8, No. 1, 1994, p. 28-49. Kochavi, Arieh J., Prelude to Nuremberg. Allied War Crimes Policy and the Question of Punishment. The University of North Carolina Press. Chapel Hill and London 1998. Kramer, Alan, “The First Wave of International War Crimes Trials: Istanbul and Leipzig.” European Review, Vol. 14, No. 4, 2006, p. 441-455.

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Lael, Richard L., The Yamashita Precedent. War Crimes and Command Responsibility. Scholarly Resources Inc., Wilmington, Delaware 1982. League of Nations, Proceedings of the International Conference on the Repression of Terrorism. Geneva, November 1st to 16th, 1937. Series of League of Nations Publications, C.94.M.47.1938.V. Geneva 1938 Lemkin, Raphael, Axis Rule in Occupied Europe. Laws of Occupation, Analysis of Govbernment, Propopals for Redress. Carnegie Endowment for International Peace, Washington 1944. (Second Edition by The Lawbook Exchange, Ltd., Clark, New Jersey 2008). MacMillan, Margaret, Paris 1919. Six Months that Changed the World. Random House, Toronto 2001. Maga, Tim, Judgment at Tokyo. The Japanese War Crimes Trials. The University Press of Kentucky, Lexington 2001. Marrus, Michael R., The Nuremberg War Crimes Trial 1945-46. A Documentary Story. Bedford/St. Martin’s, Boston and New York 1997. McCormack, Timothy L. H. and Gerry J. Simpson, The Law of War Crimes. National and International Approaches. Kluwer Law International, The Hague, London and Boston 1997. McCormack, Timothy L. H., From Sun Tzu to the Sixth Committe: The Evolution of an International Criminal Law Regime, in McCormack and Simpson (eds.), 1997, p. 3163. Meredith, Roy (ed.), This Was Andersonville. Bonanza Books, New York 1957. Meron, Theodor, War Crimes Law Comes of Age. Clarendon Press, Oxford 1998 (including chapter V: Francis Lieber’s Code and Principles of Humanity). Milton, Giles, Paradise Lost: Smyrna 1922 – The Destruction of Islam’s City of Tolerance. Spectre, London 2009. Minear, Richard H., Victors’ Justice. The Tokyo War Crimes Trial. Princeton University Press, Princeton 1971. Piccigallo, Philip R., The Japanese on Trial. Allied War Crimes Operations in the East, 1945-1951. University of Texas Press, Austin and London 1979. Plum, Lars and Andreas Laursen (eds.), Enhver Stats Pligt… International Strafferet og Dansk Ret. Jurist- og Økonomforbundets Forlag, København 2007. Power, Samantha, A Problem from Hell. America and the Age of Genocide. Harper Perennial, New York 2003. Prévost, Ann Marie, “Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita.” Human Rights Quarterly, 14, 1992, p. 303-338. Rosenne, Shabtai, The Hague Peace Conferences of 1899 and 1907 and International Arbitration. Reports and Documents. T.M.C. Asser Press, The Hague 2001. Ryngaert, Cedric (ed.), The Effectiveness of International Criminal Justice. Intersentia, Antwerp, Oxford, Portland 2009.

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Schabas, William A., Genocide in International Law. Cambridge University Press, Cambridge 2000. Schabas, William A., An Introduction to the International Criminal Court. Second Edition. Cambridge University Press, Cambridge 2004. Schabas, William A., Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford 2012. Schwarzenberger, Georg, International law as applied by international courts and tribunals. Vol. I-III. Stevens and Sons Ltd., London 1957, 1968, 1976. Sharp, Alan, The Versailles Settlement: Peacemaking in Paris, 1919. MacMillan, London 1991. Shirer, William, The Rise and Fall of the Third Reich. Fawcett Crest, Ballantine Books, New York 1992. Spiermann, Ole, Moderne folkeret. 2. omarbejdede udgave. Jurist- og Økonomforbundets Forlag, København 2004. Tanaka, Yuki, Hidden Horrors. Japanese War Crimes in World War II. Westview Press, Harper Collins Publishers, Boulder and Oxford 1996. Taylor, Telford, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10. Washington D.C., 15 August 1949. Taylor, Telford, The Anatomy of the Nuremberg Trials. A Personal Memoir. Bloomsbury, London 1993. Totani, Yuma, The Tokyo War Crimes Trial. The Pursuit of Justice in the Wake of World War II. Harvard University Press, Cambridge, Massachusetts and London 2008. Walzer, Michael, Just and Unjust Wars. A Moral Argument with Historical Illustrations. Basic Books, Harper Collins Publishers, New York, 2nd Ed. 1992. War Department, The Court Martial of Henry Wirz. General Court Martial Orders No. 607. November 6, 1865. Washington 1865. (http://www.civilwarhome.com/findingsofcourt.htm). Willis, James F., Prologue to Nuremberg. The Politics and Diplomacy of Punishing War Criminals of the First World War. Greenwood Press, Westport and London 1982.

Discourses Discussed

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chapter 6

From “Rights Talk” to “Human Rights Talk”: Transatlantic Dialogues on Human Rights Helle Porsdam1

Introduction “The case law of the European Court of Human Rights,” writes the American lawyer Michael D. Goldhaber in his conclusion to A People’s History of the European Court of Human Rights (2007), “is an unmined source of self-understanding in a region that seemingly craves self-understanding. It’s a system of myth in search of an audience.” There are symbols that may help create a modern European mythology of the sort that is needed for Europeans to feel a common identity, but “outside of human rights law, the list of Europe-wide rituals is short – and not very serious.” 2 The Eurovision Song Contest and the Ryder Cup golf tournament do not quite seem to be working effectively in this way, and the Euro has its limitations too. Goldhaber could have mentioned some of the more sustained attempts made by the European Union to create new symbols to represent Europe – the EC emblem and flag, a European “anthem”, the harmonized European passport, driver’s license and car number plates, for example. Yet, reading his analysis of cases that have come before the European Court of Human Rights, one does indeed get the impression that here is plenty of material for European myths and symbols. Human rights law would, as he sums up his argument, be the most satisfying basis for a communal identity. Americans are raised to revere cases like Brown v. Board of Education and New York Times v. 1

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This chapter is based on my book From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe. Edward Elgar, Cheltenham, UK 2009 (dx.doi. org/10.4337/9781849802307), as well as on my chapter, “Human rights: a possible civil religion,” in Helle Porsdam (ed.), Civil Religion, Human Rights and International Relations: Connecting People Across Cultures and Traditions. Edward Elgar, Cheltenham, UK 2012 (dx.doi.org/10.4337/9781781000526), p. 21-41. Michael D. Goldhaber, A People’s History of the European Court of Human Rights.: Rutgers University Press, New Brunswick NJ 2007, p. 180 and 175.

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Sullivan as central pieces of their civic culture. Clarence Gideon, who established the indigent right to counsel in the case of Gideon v. Wainwright, has become an American folk hero, thanks to the book Gideon’s Trumpet by journalist Anthony Lewis, and the movie version starring Henry Fonda. By all rights, Lingens v. Austria ought to be as famous in Europe as New York Times v. Sullivan is in America. Inspiring figures like Zeki Aksoy and P.J. McClean ought to become rallying symbols for European sentiment. The case law of the European Court of Human Rights is a veritable mythology in waiting.3 Goldhaber’s transatlantic comparison is interesting. Used to an American context in which law figures prominently, and in which the most important political, social, and cultural discussions either begin or end in a court of law, he is suggesting that in Europe, too, law is providing a cultural glue of sorts, serving as a focus of values and aspirations.4 Some commentators on American culture and society have seen law and its practitioners as providers of social definitions for events and transactions – even as protectors and translators into actual day-to-day behavior of American exceptionalism.5 The very concept of American exceptionalism – that is, the claim that the U.S. is not only different from other countries, but also unique in a fundamentally benevolent way – has been heavily criticized over the past few years, however. Under the influence, in part, of the recent turn toward global or transnational history, U.S. historians have argued that the grand narrative of American exceptionalism has ignored the original diversity in America’s past and has imbued with universality particular social traits – virtually all white and male.6

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Goldhaber, 2007, p. 180 and 176-77. The importance of law and lawyers in the U.S. is the topic of my first book: Helle Porsdam, Legally Speaking: Contemporary American Culture and the Law. University of Massachusetts Press, Amherst, MA, 1999. See e.g. Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution. Yale University Press, New Haven, Conn. 1989; Sanford Levinson, Constitutional Faith. Princeton University Press, Princeton, NJ 1988; Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse. The Free Press, New York 1991; and also my own Porsdam, 1999. One of the first American critics to take issue with the concept was Historian Joyce Appleby who, in her presidential address to the Organization of American Historians in the spring of 1992, described it as a version, or rather perversion, of European Enlightenment ideas. The grand narrative of American exceptionalism, she argued, has been “America’s

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For a number of non-American scholars, too, the concept of American exceptionalism has come under attack as being too parochial and inward-looking. Historians of U.S. foreign relations have begun, for example, to stress the broader context – the evolution of global capitalism, say, or the transformation of balances of power and geopolitical settings – just as they have drawn attention to the ways in which the U.S., like any other country, is dependent on and subject to global forces not under its own control. For some European historians, moreover, a wish to challenge the dominant U.S. narrative, and to reclaim European history in the process, seems to be at play. This is the case in parts of European scholarship on the Cold War. London School of Economics scholar Michael Cox has claimed that “many American accounts privilege the role of the United States in seeking to explain the end of the Cold War,” with the unfortunate result of writing others – especially Europeans – out of the success story.7 These European challenges are perhaps most apparent in the writing of the more “triumphal” aspects of later twentieth century history – notably the rise of human rights and the fall of communist regimes. In terms of the former, which is our concern here, one result is that a number of transatlantic tensions come together or are expressed in the area of human rights. In this chapter, I will analyze two human rights areas or issues on which there is disagreement. The first of these is the core of human rights, the kinds of (human) rights emphasized, and the second is the attitude toward international law and international human rights regimes. Whereas Americans tend to think that the core of human rights consists of civil and political rights only, Europeans tend also to believe in economic, social and cultural rights, if for no other reason than that the welfare state and its future matter a great deal to them. This distinction is not watertight, of course; there are Americans who would never dream of questioning whether economic, social and cultural rights are something other than rights, just as there are Europeans who would still consider political and civil rights more fundamental than any other kinds of rights. We are dealing with generalizations here, but these will serve, I hope, to make an important point in relation to transatlantic dialogues on human rights. The same goes for the other human rights area where there is strong disagreement: the role of international law and institutions. Whereas many Eu-

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peculiar form of Eurocentrism.” Joyce Appleby, “Recovering America’s Historic Diversity: Beyond Exceptionalism.” Journal of American History 79, 1992, p. 419-431 (p. 420). Michael Cox, “Another Transatlantic Split? American and European narratives and the End of the Cold War.” Cold War History, Vol. 7, No. 1, Febr. 2007, p. 121-146.

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ropeans are of the opinion that supranational law and institutions may work alongside of or in parallel with national law,8 there is much less enthusiasm on the American side. Sovereignty is a big issue, as is federalism.9 But also more culturally related matters such as American exceptionalism and belief in the superiority of the U.S. constitutional tradition play an important role. These differences notwithstanding, the overall argument of my essay is that a human rights discourse and way of looking at things is a discourse which has the potential to become a shared, transatlantic discourse. Michael Goldhaber is right on target, in my opinion, when he points to the interesting parallels between what has been termed, in the U.S. context “rights talk”,10 and what has emerged in the European context as “human rights talk”.11 Rights are central to who we are and to how we intend to solve problems on both sides of the Atlantic. In his Geschichte des Westens (“History of the West”), German historian Heinrich Gustav Winkler writes about ‘the project of the West’ that its roots go back to the middle ages, even antiquity, and that it is a transatlantic endeavor: Starting with the Virginia Declaration of Rights from 12 June 1776, the first human rights declarations were decided upon and proclaimed in the British colonies in North America. They had a very strong impact on the Declaration of the Rights of Man and of the Citizen through the French National Constituent Assembly on 26 August 1789. With the two Atlantic revolutions of the late 18th century, the American Revolution of 1776 and the French Revolution of 1789, the project of the West was

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This can be seen by e.g. the general support for the European Convention on Human Rights as well as for the European Court of Human Rights. Both sovereignty and federalism are also issues that play a role in the European context. The fact that a number of national human rights institutions have been established over that past few years shows, for example, that the immediate, regional context matters for most Europeans. In terms of enforcement, moreover, most Europeans are well aware that the individual nation state plays a very important role. However, Europeans are, still generally speaking, more inclined toward favoring a role for supranational law – at the EU, but also at the global level – than are Americans. Cf. Glendon, 1991. See my book Porsdam, 2012, p. 3.

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essentially formulated. The West had a standard by which it could – and had to – measure itself.12 Winkler is the first to admit that the history of the West is full of paradoxes – the authors of the first human rights declarations were slave-holders, for example – and that theory has not always been followed by practice. This does not change the fact, however, that human rights have been there as a yardstick and as an ideal worth striving for as well as a potential device for securing peace and co-operation in the world.

The Core of Human Rights The European Context13 Economic and social rights were mentioned in the post-Second World War constitutions of France, Germany and Italy – but not in the European Convention of Human Rights. The decision not to include these rights was made because key drafters of the document felt that it was necessary first, in the words of Pierre-Henri Teitgen, “to guarantee political democracy in the European Union and then to co-ordinate our economies, before undertaking 12

13

Heinrich August Winkler, Geschichte des Westens. Von den Anfängen in der Antike bis zum 20. Jahrhundert (The history of the West: From its beginnings in antiquity to the 20th century). C.H. Beck, Munich 2009, p. 21. My translation from the German. The original reads: “Die ersten Menschenrechtserklärungen wurden, beginnend mit der Virginia Declaration of Rights vom 12. Juni 1776, auf britischem Kolonialboden in Nordamerika beschlossen und verkündet. Sie beeinflussten auf das stärkste die Erklärung der menschen- und Bürgerrechte durch die französische Nationalversammlung am 26. August 1789. Seit den beiden atlantischen Revolutionen des späten 18. Jahrhunderts, der Amerikanischen Revolution von 1776 und der Französischen Revolution von 1789, war das Projekt des Westens im wesentlichen ausformuliert. Der Westen hatte einen Massstab, an dem er sich messen konnte – und messen lassen musste.“ It should be clarified at this point that throughout this chapter, the transatlantic dialogues that interest me are both the dialogues conducted on the part of European and American intellectuals, policy makers and artists, and also the dialogues conducted between the EU and the U.S. This means that I do not get into the differences that exist between mainland Europe and Great Britain – for example in terms of the civil-law systems of the mainland European countries versus the British common-law system – or between the various traditions in mainland Europe itself. I mostly talk about Europe as one entity, and my focus is on intellectual responses that present themselves as ‘European’ or see themselves as coming out of a European tradition as well as on the official reaction of the EU toward the various issues dealt with.

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the generalisation of social democracy.” 14 The economic and social rights had to wait until the European Social Charter in 1961 to be officially recognized. Often referred to as the social counterpart of the European Convention on Human Rights, the Social Charter has since been revised and amended by various protocols.15 In 2000, the EU Charter of Fundamental Rights, which sets out in a single text the fundamental rights applicable at the European Union (EU) level, was proclaimed by the Nice European Council. Based on the Community Treaties, international conventions, constitutional traditions common to the Member States and various European Parliament declarations, it establishes ethical principles and rights for EU citizens and residents that relate to dignity, liberty, equality, solidarity, citizenship and justice, just as it covers workers’ social rights, data protection, bioethics and the right to good administration. With the entry into force of the Lisbon Treaty on December 1, 2009, the Charter (as amended in December 2007) has received the same legal value as the Treaties and has become equally binding. This increasing interest in and focus on economic and social rights has made some European scholars and intellectuals speculate about the possible development of a Social Europe. According to Anthony Giddens, for example, “Europe’s welfare system is often regarded as the jewel in the crown – perhaps the main feature that gives the European societies their special quality.”16 Many different definitions of the so-called European Social Model (EMS) have circulated over the years, but the one Giddens offers includes an interventionist state funded through taxation; a welfare system with high social protection, especially for its weaker members; and the containment of inequality, especially in the economic area (leading to e.g. the protection of the social rights of workers and their families).17 Underlying Giddens’ version of the EMS is a set of values which he summarizes in this way: Sharing both risk and opportunity widely across society, cultivating social solidarity or cohesion, protecting the most vulnerable members of society through active social intervention, encouraging consultation 14

15 16 17

Pierre-Henri Teitgen, quoted in Henry J. Steiner and Philip Alston (eds.), International Human Rights in Context: Law, Politics, Morals. Oxford University Press, Oxford 2000, 2nd edition, p. 794. The International Covenant on Economic, Social, and Cultural Rights has also been very important in this respect. Anthony Giddens, Europe in the Global Age. Polity Press. Cambridge 2007, p. 1. Giddens, 2007, p. 2.

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rather than confrontation in industry, and providing a rich framework of social and economic citizenship rights for the population as a whole (emphasis added).18 As leading expert in European Union law and European human rights law Gráinne de Búrca points out, moreover, the way in which the EU system itself makes use of a discourse around the concept of the ‘European Social Model’ that would seem to suggest a conscious European welfare program is interesting. When that concept was referred to in the past, people normally meant to suggest certain principles that the different European welfare states would have in common. Now, what the ESM seems to suggest is instead the existence of one single system or model in Europe. “Indeed the renewal and ‘modernization’ of the European social model has,” says de Búrca, “been a theme of EU social policy over the last decade in particular. Even if the notion of the European social model is thus rather vague and diffuse, it suggests something which is simultaneously based on and drawn from various national welfare systems, but which is also promoted by the EU and independently shaped by developments at transnational and supranational level.”19 The U.S. Context Whereas in Europe an economic efficiency and property discourse has eventually led to the protection of the social rights of workers and their families, as we saw, this does not seem to have happened in the American context.20 The U.S. only ratified the International Covenant on Civil and Political Rights in 1992 and has to this day not ratified the International Covenant on Economic, Social and Cultural Rights. It is not that the U.S. has never acknowledged the tradition of economic and social rights. As Cass Sunstein reminded us in his 2004 book, The Second Bill of Rights, Franklin D. Roosevelt’s State of the Union Address of 1944 did give form and specificity to the idea that human beings have inherent economic and social rights.21 In this speech – echoing his famous Four Freedoms speech of 1941 in which he proposed the four 18 19 20 21

Giddens, 2007, p. 2. Gráinne de Búrca, “Towards European Welfare?,” in Gráine de Búrca (ed.), EU Law and the Welfare State: In Search of Solidarity. Oxford University Press, Oxford 2005, p. 1-10. p. 3. In the American context, the Supreme Court’s use of the Commerce Clause has been extended to include various civil rights, however. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. Basic Books, New York 2004.

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freedoms: freedom of speech and of religion, freedom from want and from fear – Roosevelt called for a Second Bill of Rights. This new, modern Bill of Rights would consist of eight relevant rights – rights which would together ‘spell security.’ Among these rights were the right to a useful and remunerative job; the right to earn enough to provide adequate food and clothing and recreation; the right of every family to a decent home; the right to adequate medical care and the opportunity to achieve and enjoy good health; the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; and the right to a good education. Unfortunately, these rights never became as popular as Roosevelt had hoped. They were never enacted and were more or less forgotten by the general public. The narrow election of Richard Nixon to the presidency in 1968 and the conservative Supreme Court appointments that resulted are partly to blame, according to Sunstein. To this we may add that the Cold War ‘happened’ and that economic and social rights, which were heavily supported by the East Bloc headed by the USSR, came to be viewed by many Americans as a first dangerous step toward communism. Up until President Carter signed the Economic Covenant in 1978, arguments against economic, social and cultural human rights took on a domestic angle. But after President Carter had signed and sent the Economic Covenant to the Senate for its advice and consent to ratification – which, of course, he never received – arguments would also focus on the implications for U.S. foreign policy. The important thing to stress in this context is the way in which hostility to loss of sovereignty was mixed up with, first of all, a fear that U.S. ratification of the Economic Covenant would encourage the emerging civil rights movement in the U.S. (based largely on federal initiatives – something which was not popular among supporters of states’ rights) and secondly, a fear that such a ratification would lead to “back-door communism”. In relation to the former, scholars have argued, also, that among conservatives (especially southern conservatives) support of states’ rights was a sort of code for racist sentiments – a way of fighting the attempt to give more and more rights to blacks and other minorities.22 Much later, to this fear was added another fear – namely that international human rights instruments would guarantee unlimited government interference in family life. Thus, the most vocal opponents to the ratification of the Convention on the Rights of the Child (CRC), in the drafting process of which 22

Andrew Moravcsik, “The Paradox of U.S. Human Rights Policy,” in Michael Ignatieff (ed.), American Exceptionalism and Human Rights. Princeton University Press, Princeton and Oxford 2005, p. 147-198. p. 178.

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the U.S. had participated and to which it became a signatory in 1995, were conservative religious organizations. These described the CRC as “the most dangerous attack on parents’ rights in the history of the United States,” “the ultimate program to annihilate parental authority” and a “tool for perverts,”23 and they were so efficient in their attacks on the Convention that the U.S. never ratified it. This is a good example of the power that conservative groups, especially religious groups, have been able to wield since the 1960s and 1970s – a power that is out of proportion to the actual size of such groups, but that is furthered, among other things, by the fragmented nature of American political institutions which allow “veto players” to block particular government actions. It is a cliché of comparative politics, explains political scientist Andrew Moravcsik, that the American system of government stands out in comparative perspective for its extreme commitment to the Madisonian schema of ‘separation of powers’ and ‘checks and balances.’ All other things equal, the greater the number of ‘veto players,’ as political scientists refer to those who can impede or block a particular government action, the more difficult it is for a national government to accept international obligations. The U.S. political system is in most respects exceptionally decentralized, with the consequence that a large number of domestic political actors must approve major decisions. Three such characteristics of the U.S. political system are of particular importance to an understanding of U.S. human rights policy: supermajoritarian voting rules and the committee structure of the Senate, federalism, and the salient role of the judiciary in adjudicating questions of human rights.24 I will come back to these characteristics of the U.S. political system in the next section of the chapter – the one that deals with why it is that Americans refuse to play when it comes to international law. Mixed with these concerns, moreover, were fears that economic, social and cultural rights would give rise to a more collectivist way of thinking which might in the end undermine the enjoyment of individual freedom and downplay the importance of civil and political rights. Most importantly, such a collectivist way of thinking might call for large-scale state intervention in the economy which might seriously impair the functioning of free markets. 23 24

Quoted in Susan Kilbourne, “Placing the Convention on the Rights of the Child in an American Context,” in Steiner and Alston (eds.), 2000, p. 519. Moravcsik, 2005, p. 186-87.

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On the issue of ‘back-door communism,’ the American Bar Association (ABA) interestingly enough played quite a significant role. In general, the ABA was opposed to promoting human rights through treaty law – an opposition that would later help create among senators support for the Bricker Amendment – but its members were especially critical of the idea of economic and social rights. In 1948, the new ABA president, Frank Holman, began writing a series of articles which focused on the draft Economic Covenant and basically argued that “this program, if adopted, will promote state socialism, if not communism, throughout the world.” 25 What was at stake was nothing less than the idea of America and especially that sacred document which more than any other document down through American history has been responsible for creating this idea, the Constitution. To many Americans, law is a civic religion, the Constitution being a sort of secular Bible. They believe in what American legal scholar Kenneth Karst once called “law’s promise”: the potential of law and the courts to reshape the social meanings of race, gender, and religion and “to promote the enactment of millions of individual narratives of inclusion.”26 While law’s language is that of power, it can at times also be empowering, as several individual Americans but also minority groups have discovered after having successfully taken their fight to be taken seriously to the country’s courts. Historically, American judges have not allowed themselves to be inspired by foreign human rights law. The attitude has been that precisely because of its strong rights tradition, the U.S. has nothing to learn from others about rights. If international law conflicts with the Constitution – then something is wrong, not with the Constitution, but with international law.27

25

26 27

Frank Holman, quoted in Daniel J. Whelan, 2005. “The United States and economic and social rights: past, presents... and future?”, Human Rights & Human Welfare, Working Paper No. 26, online at http://www.du.edu/korbel/hrhw/workingpapers/2005/26whelan-2005.pdf, 7 – (last visited on June 17, 2012). I am quoting from this paper with Daniel Whelan’s permission. Kenneth L. Karst, Law’s Promise, Law’s Expression: Visions of Power in the Politics of Race, Gender, and Religion. Yale University Press, New Haven, Conn 1993, p. 107. There is a big discussion going on at the moment as to whether or not it is acceptable for members of the U.S. Supreme Court to quote decisions handed down by foreign courts.

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The Role of International Law and International Institutions The European Context When it came to the adoption of a European Convention, there were at least three different factors at work. The first factor was the belief that governments who respect human rights are less likely to go to war with their neighbors. The second was making sure that Germany would henceforth become a force for peace, and the third was the perceived need to deal with the Communist threat.28 As Lord Ismay, famously put it in 1949, the goal was “to keep the Russians out, the Americans in, and the Germans down.”29 The whole idea, in other words, was to avoid the sort of problems recent European history had been so full of by means of creating a supranational framework. The drafters were not blind to the fact that those visions for a supranational Europe would alienate some – that there would be concerns over sovereignty as well as over the (perceived) distance, geographical and also psychological, between the individual citizen and European politicians and bureaucrats. Those concerns have lasted to this day – two obvious examples being the French and Dutch voters turning down the first attempt at a European constitution in 2005 and the Irish “no” to the Lisbon Treaty in 2008. Europe has had its own version of a federalism debate, that is. The concern shown by European voters from time to time does not change the fact, however, that “the EU citizen is the first in the world to be fully guaranteed universal human rights enforceable by law” – or so argued Jeremy Rifkin in a somewhat polemical defense of “the European Dream” in 2004.30 An American who served as an adviser to Romano Prodi while the latter was the president of the European Commission (1999-2004), Rifkin has been a keen observer of European trends for many years. Whereas the American Dream was based on property rights, markets, and nation-state governance, he writes, the new European Dream – which, as the book’s subtitle announces, is currently “quietly eclipsing the American Dream” – is centered around human rights, networks, and multilevel governance. Human rights are “the norm that govern network activity”; indeed,

28 29 30

Steiner & Alston, 2000, p. 786-87. Lord Ismay, quoted in David Reynolds, The Origins of the Cold War in Europe: International Perspectives. Yale University Press, New Haven, CT 1994, p. 13. Jeremy Rifkin, The European Dream: How Europe’s Vision of the Future is Quietly Eclipsing the American Dream. Polity Press, Cambridge 2004.

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human rights are the legal articulation of the new European Dream. The European Dream and universal human rights come together as a single package. The Dream is the aspiration; the rights are the behavioral norms for fulfilling Europeans’ hopes for the future. More cosmopolitan and less focused on the brute force of power, the European Dream is better suited, claims Rifkin, to an increasingly interconnected and interdependent world in which norms of behavior will be rewarded that further inclusion, instead of exclusion.31 Picking up the gauntlet thrown to Europe by Robert Kagan in Of Paradise and Power: America and Europe in the New World Order (2003), British political scientist Mark Leonhard has argued, furthermore, that “the European project is based on a desire to move beyond a world of power politics, where “might makes right”, to a community based on the rule of law. Europeans have used this desire to turn a lot of the basic rule of sovereignty on their head.” Rather than staying within an old-fashioned nation-state paradigm, Europeans have turned the relationship between the different European nation-states into domestic policy – a policy which is based on many common standards and laws, together known as the acquis communitaire. And “because each member state wants its fellow members to obey the law, they are forced to obey it themselves.”32 As Leonhard sees it, law has also become Europe’s best foreign policy tool. Europeans have a strong interest in defending international law and legal institutions, in part because the EU was itself founded on the basis of an international treaty. They have seen this system work at home, so to speak, and now also believe in using law on the international scene as a means toward creating a peaceful and democratic order: At the same time, the EU builds provisions about human rights, the sanctity of contracts, and European competition policy into all of its dealings with other countries. In order to comprehensively change the countries it comes into contact with, European diplomacy starts not with military strategy, but domestic politics. Europeans believe that the best way to win the war on terror, control the proliferation of weapons of mass destruction, or wipe out organized crime and drugs is to spread the international rule of law. By helping to transform weak or autocratic 31 32

Rifkin, 2004, p. 278-279. Mark Leonhard, Why Europe will run the 21st century. Fourth Estate, London and New York 2005, p. 41-42.

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states into well-governed allies, Europeans hope to be able to defend themselves from the greatest threats to their security.33 This European preference for long-term involvement with the aim of providing political, economic and legal bases of stability as opposed to removing what are perceived to be imminent security threats by military means only, is voiced quite forcefully in “The European Security Strategy: A Secure Europe in a Better World” from December 2003. Arguably a response to President George W. Bush’s doctrine of “preventive war”,34 ‘The European Security Strategy’ tells us that, We are committed to upholding and developing International Law… It is a condition of a rule-based international order that law evolves in response to developments such as proliferation, terrorism and global warming. We have an interest in further developing existing institutions such as the World Trade Organisation and in supporting new ones such as the International Criminal Court… The quality of international society depends on the quality of the governments that are its foundation. The best promotion of our security is a world of well-governed democratic states. Spreading good governance, supporting social and political reform, dealing with corruption and abuse of power, establishing the rule of law and protecting human rights are the best means of strengthening the international order.35 Another, more recent example is a resolution on the fight against terrorism adopted by the European Parliament in December 2007. Having outlined the firm commitment of the EU to the “fight against terrorism in all its dimensions,” the report goes on to stress that there must be no areas in this fight against terrorism “in which fundamental rights are not respected.” Dismay is shown that abuse of powers seems to have occurred under the pretext of counter-terrorism – extreme interrogation techniques have been applied on terror suspects, for example – and a need is expressed to pay “considerably more attention in the EU counter-terrorism strategy to the causes of terror33 34

35

Leonhard, 2005, 47. Leonhard, 2005, p. 63. This choice of words is presented in ‘The European Security Strategy: A Secure Europe in a Better World,’ Brussels, 12 December 2003, 8 – available at http://consilium.europa.eu/uedocs/cmsUpload/78367.pdf (last visited on January 11, 2009). The European Security Strategy, 2003, p. 9-10.

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ism and the EU’s role therein.” As far as ‘prevention’ is concerned, the report states that the European Parliament, believes, further, that an important element in preventing terrorism is an EU and Member State development aid policy that also functions as a security policy; considers that promoting civil society and helping to achieve social peace and prosperity are a suitable means of showing people their opportunities and restricting the spread of fundamentalist ideologies; believes, therefore, that the development of education, health and social security systems in countries often identified as the origin of terrorist activities should be made a much greater priority than before in development aid policy…36 In the European no less than the American context, it would thus seem, views on the role of international law have quite an impact on views concerning the importance of economic, social and cultural human rights – and vice versa. The post-WWII wish to resolve the problems of recent European history by means of creating a supranational framework has borne fruit, in no small part due to the promotion of Social Europe. Such limitations on sovereignty are an inconceivable prospect to most Americans, especially when they are brought about by the pursuit of economic, social and cultural rights. The U.S. Context Europeans are often puzzled by the American distrust of international law and legal institutions. The reasons for this distrust are many and varied. There are certain structural obstacles to U.S. adherence to international law involved that are independent of the transitory opinion of members of the U.S. government, the courts as well as of the American public. In addition, there are some more ideological reasons. With the exception of Article VI, which declares treaties of the United States (in addition to the Constitution itself and the laws of the U.S.) to be “the supreme law of the land” and Article III, Section 2, which proclaims cases arising under treaties to be within the judicial power of the U.S., the Constitution is fairly vague in its references to international law and to the status of such law under U.S. law. In its use under the Constitution, moreover, the 36

European Parliament Resolution of 12 December 2007 on the Fight against Terrorism, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA2007-0612+0+DOC+XML+V0//EN&language=EN – last visited on June 19, 2012.

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word “treaty” has a more restricted meaning than it does in international law. “That is,” explains international lawyer John F. Murphy, “under Article II (2) (1), the term ‘treaty’ is applied only to international agreements, however denominated, that become binding on the United States through ratification by the president with the advice and consent of the Senate through a two-thirds vote of that body.”37 The constitutional requirement of a two-thirds majority vote in the Senate is unique and makes of the Senate one of those potential ‘veto groups,’ mentioned by Andrew Moravcsik, that are able to block particular government actions due to the fragmented nature of American political institutions. Here, the support of the chairman of the Foreign Relations Committee is crucial, and if he or she happens to hold conservative views (which has been the case for most chairmen since 1945), then it is virtually impossible to override his/ her decision to block consideration of a treaty on the floor. From Woodrow Wilson’s proposal for a League of Nations in 1919 to the present, twentieth century American history has seen numerous examples of Senate minorities, disproportionately representative of conservative southern and rural midwestern or western states and suspicious of liberal multilateralism, blocking attempts to ratify international agreements – even in cases where a simple majority support in the Senate was in fact in place. One example of such conservative Senate action is the – nearly successful – attempt made by members of the American Bar Association (ABA), previously mentioned, to pressure key senators into taking action so as to prevent the U.S. from becoming a party to the two UN Covenants in the early 1950s. These members found an ally in Senator John Bricker, a Republican from Ohio, whom they helped draft various amendments commonly referred to collectively as the Bricker Amendment in 1953. At this period in time, 61 pct. of the Senators were lawyers and presumably members of the ABA – a fact which must have been helpful to the organization. This was the height of the McCarthy period – a period during which all the isolationist fears of losing self-determination by getting too involved in foreign affairs came to the fore again – and what Bricker (and the ABA) did not like was the wording of Article VI of the Constitution according to which treaty law is placed at the same level as constitutional law and statute law. Their aim was to see to it that treaties would no longer be self-executing and would no longer override the reserved powers of the states. The proposed amendment had three sections: 37

John F. Murphy, The United States and the Rule of Law in International Affairs. Cambridge University Press, Cambridge 2004, p. 76-77.

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Sec. 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect. Sec. 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty. Sec. 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.38 During the debate in the Senate, Bricker told his colleagues: “I do not want any of the international groups, and especially the group headed by Mrs. Eleanor Roosevelt, which has drafted the covenant of Human Rights, to betray the fundamental, inalienable, and God-given rights of American citizens enjoyed under the Constitution. That is really what I am driving at.”39 The incoming Eisenhower administration saw the proposed amendment as an attempt to restrict the president’s foreign policy powers and vigorously opposed its adoption. The result was that support withered away. However, as one commentator noted, “Senator Bricker lost the battle but won the war.”40 A lasting legacy of the Bricker Amendment has been the package of Reservations, Understandings and Declarations (RUDs) that invariably accompanies any U.S. ratification of international agreements. In 1977, President Carter signed four human rights treaties – two of which being the two UN Covenants. He sent them on to the Senate for its consent, proposing that members of the Senate adopt a number of RUDs in the process. A legal adviser in the State Department at the time, Robert Owen, summarized the objections raised during the Senate hearings in this way: [Objections to the human rights treaties] tend to fall into three categories. First, it is said that the human rights treaties could serve to change our laws as they are, allowing individuals in courts of law to invoke the treaty terms where inconsistent with domestic law or even with the Constitution. The second type of objection is that the treaties could be used to alter the jurisdictional balance between our federal and state in38

39 40

Bricker Amendment, 1953, quoted in Stanley N. Katz, “U.S. Constitutionalism and International Human Rights: Incompatible?,” 2003, which used to be available online at http:// web.ceu.hu/legal/universalism%20and%20local%20knowledge%20in%20HR%20 2003/Katz_paper.htm, 3-4 (last visited on May 21, 2008). Katz, 2003, p. 4. Murphy, 2004, p. 82.

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stitutions… The third type of objection is that the relationship between a government and its citizens is not a proper subject for the treaty-making powers at all, but ought to be left entirely to domestic legislative processes…41 The treaties were never voted on and nothing further happened until President Bush made another – and this time successful – attempt to get the Political Covenant ratified in 1991. The Bush administration only sent the Political Covenant to the Senate for ratification, not the other three treaties (among them the Economic Covenant). Among the formal reservations submitted to the Senate Foreign Relations Committee was one that concerned free speech and another that dealt with capital punishment – two of the areas that have always caused problems because the U.S. differs from many other countries in its insistence on more or less absolute freedom of speech as well as on the use of the death penalty. The distinction between self-executing and non-self-executing treaties and the use of RUDs are among the most important structural obstacles to U.S. adherence to international law, but a couple of others could also be mentioned.42 Together, they “have all contributed to ‘treaties’ enjoying a lowly and problematical status under US law and practice.”43 When it comes to the second primary source of international law, customary law, things do not look much better, moreover. The oldest source of international law, customary international law “results from a general and consistent practice of states followed by them from a sense of legal obligation,” as stated in Section 102 of the Restatement (Third), Foreign Relations Law of the United States.44 In terms of where to look for evidence for such law, international lawyers normally mention the actual practice of states, a state’s laws and judicial decisions, the writings of international lawyers as well as the judgments of national and international tribunals. In addition, treaties – especially multilateral treaties – can be evidence of customary international law.45

41 42

43 44 45

Robert Owen, quoted in Steiner & Alston, 2000, p. 1035. Murphy also mentions the extensive constitutional authority of the president in foreign affairs to suspend, terminate, or deviate from treaty obligations as well as the uncertain status of presidential executive agreements under U.S. law. Murphy, 2004, p. 87-90. Murphy, 2004, p. 90. Steiner & Alston, 2000, p. 70. Steiner & Alston, 2000, p. 72-73.

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And this is where things get especially tricky as far as the U.S. is concerned. When the UN was in its infancy, there were around sixty member states among which Western states – and especially the U.S. – were the dominant ones. Many of the states that would become members later on were Western colonies, and the Soviet Union did not play much of a role in the UN context. The number of states upon whose customs and usages customary international law was to be built, was therefore comparatively small – and these states consisted, for the most part, of “civilized nations,” to use a phrase from the 1900 U.S. Supreme Court decision in The Paquete Habana to which we shall return shortly. “Today, by contrast, there are 191 member states of the United Nations and close to 200 states in the world community, and these states have raised a serious challenge to the dominance of the international legal process to the West.”46 This not only makes it increasingly difficult to figure out what constitutes relevant state practice; it also means that what the U.S. would consider ‘rogue states’ have a say in this process. And it also means that the U.S. might find itself in a situation where parts of the International Bill of Rights – the Economic Covenant, say – would be forced on the country as customary international law (allegingly constituting custom binding non-parties) despite the fact that the U.S. is strongly opposed to them. Customary international law, that is, would tend to spin the U.S. into a web of human rights law, not of its own making and perceived not to be in its best interest – a situation in which all the most carefully thought-out RUDs would not amount to much! In addition, there is the question of what status customary international law has under U.S. law – a question that becomes increasingly relevant as its scope of coverage expands. In an often quoted passage from its 1900 decision in The Paquete Habana, the U.S. Supreme Court stated: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial

46

Murphy, 2004, p. 14.

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tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.47 The Paquete Habana is a classic case that is a ‘must-read’ for American students of international law, first of all “to demonstrate the process of ascertaining a norm of customary international law” and secondly “to raise the issue of the status of customary international law under US law.”48 The language used in the opinion is clearly ambiguous, however – how and when did international law become “part of [American] law,” and what did the Court mean by a “controlling executive or legislative act or judicial decision,” are but two of the questions American lawyers have since wrestled with. They have received virtually no help from the courts. There is only one reference to customary international law in the Constitution: Article 1, section 8, clause 10 which says that Congress has the power “to define and punish… [o]ffenses against the Law of Nations.” Using norms of customary international law in the interpretation of the Constitution has always been controversial, and the Supreme Court has “never explicitly upheld the use of international law as a guide to interpreting the US Constitution.”49 Finally, in our attempt to explain why the U.S. has been critical of international law, we also have to factor in what international lawyer John Murphy calls U.S. triumphalism, exceptionalism and provincialism: The collapse of the Soviet Union… left the US as the ‘sole remaining superpower’ and has encouraged an attitude of triumphalism that has irritated the governments of other countries… Accompanying this triumphalism and closely related to it is an attitude of ‘exceptionalism’, that is, that the US bears special burdens and is entitled to special privileges because of its status as the sole surviving superpower. The collapse of the Soviet Union also brought about a [revival] of US provincialism and isolationism as well as of a preference to act unilaterally rather than multilaterally.50 More fundamentally, perhaps, what we are looking at here, Murphy furthermore suggests, is a distrust of power, and especially of centralized power that runs deep in American history. Americans have tended to distrust such cen47 48 49 50

Quoted in Murphy, 2004, p. 95-96. Murphy, 2004, p. 96. Murphy, 2004, p. 93. Murphy, 2004, p. 7.

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tralized power even more when it has been claimed and exercised abroad – especially when the U.S. itself has had no say in the matter. Thus, it has been against the establishment of the International Criminal Court, for example, which may put American citizens on trial according to a new legal order over which the U.S. has no control.51 To the historical distrust of centralized power, we should add another deepseated concern – namely, that many international human rights systems suffer from a democratic deficit. Neither international human rights lawyers nor NGOs have been democratically elected to their respective jobs – so where does their legitimacy come from and whom do they answer to? In an interesting article on “U.S. Constitutionalism and International Human Rights: Incompatible?”, well-known legal historian Stanley N. Katz refers to the tight fit between popular sovereignty and constitutional validity in U.S. history. Unless things – treaties, (international) laws, etc. – have been voted on by the representatives of ‘We the People’ (that is, by the U.S. Congress), their constitutional legitimacy cannot be accepted, and they cannot be valid for the American people: We are all Brickerites, to this extent, especially wary of the possibility that exogenous norms will be bootstrapped into the domestic order, by treaty, executive agreement, or otherwise. This is an integral part of our historic constitutional personality that is increasingly in tension with the globalism of higher values. For us Americans, international human rights as they might be simply assimilated into our Constitution threaten the creation of a disturbing democratic deficit. For us, the adoption of such important values (at least insofar as they are new values) requires a formal constitutional act invoking popular sovereignty.52 It is in fact, argues American Law Professor Jeremy Rabkin, only a sovereign state that can make and enforce law in a reliable way and thereby protect the rights of its citizens. Moving from civil rights to human rights is at odds with the basic principles of American thought and the broader traditions of liberal political thought on which the American Founders drew. The driving force in the world for this move toward human rights and global governance is Europe. In his book, Law Without Nations?, from 2005, Rabkin writes:

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Murphy, 2004, p. 354-55. Katz, 2003, p. 8.

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The idea that the world could be reformed by human rights crusaders – properly anointed by international human rights authorities – was too inspiring, too comforting, to question in public. European governments no longer anchored in traditional religion were very ready to embrace new pieties. Rights talk escaped from the confines of settled constitutional orders, first into the neverland of international conferences, then on to the real world of deadly conflict. But it would all turn out well if only people believed in the magic words ‘human rights.’ Hocus pocus!53 The kind of human rights law that the Europeans are so fond of generates a cloud of (mostly empty) rhetoric that does little to secure human rights in practice and that tends to undermine American principles such as the separation of powers doctrine and federalism. A number of progressive, left-leaning Americans share with members of the Right such as Jeremy Rabkin this deep suspicion of Europe and European human rights talk. While some doubt whether Europeans have really learned their lesson from a past that is full of genocide, imperialism, colonialism and hegemonic behavior in general, others find the faith in human rights as a progressive, universal project eroding. Postcolonial scholars challenge traditional – and what they consider to be Eurocentric – histories of international law, for example, and claim that these are based on assumptions about difference, the cultural “Other”, that are produced partly in and through the colonial encounter. As far as they are concerned, universalist claims of human rights and the rational subject have justified political exclusions in practice and also set out the terms for political inclusion.54 A somewhat more New Left or neo-Marxist “take” on Europe and the European Union is delivered by the British-American historian Perry Anderson in his essay on “European Hypocrisies” in a September 2007 issue of the London Review of Books. The title, of course, says it all. Reviewing a number of recent books on Europe, Anderson writes how “self-satisfaction is scarcely unfamiliar in Europe.” But the contemporary mood “is something different: an apparently illimitable narcissism…”55

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Jeremy Rabkin, Law Without Nations? Why Constitutional Government Requires Sovereign States. Princeton University Press, Princeton and Oxford 2005, p. 164. See e.g. Joseph R. Slaughter, Human Rights, Inc: The World Novel, Narrative Form, and International Law. Fordham University Press, New York 2007. Perry Anderson, “Depicting Europe,” London Review of Books, Vol 29 No. 18, 20 September 2007, p. 13-21. p. 13.

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Not only have rumors concerning the bureaucratic nature of the European Union been wildly understated, continues Anderson; “constitutionally, the EU is [also] a caricature of a democratic federation, since its Parliament lacks powers of initiative, contains no parties with any existence at European level, and wants even a modicum of popular credibility.”56 The EU is basically about business, Anderson claims, and though the EU contrasts itself to the US, the sad truth is that “Europe surrendered to the United States. This rendition is the most taboo of all to mention.” And as for human rights, forget it. Not a single European government has “conceded any guilt” in relation to the war in Iraq and the war on terror in general; instead, “all continue to hold forth on human rights. We are,” Anderson concludes, “in the world of Ibsen – Consul Bernick, Judge Brack and their like – updated for post-moderns. Pillars of society, pimping for torture.”57

Concluding Remarks If Timothy Garton Ash is correct in his assessment in Free World: America, Europe, and the Surprising Future of the West from 2004 that the old Atlantic-centered West only has about twenty more years in which to play at least some part in setting the agenda of world politics and in seeking solutions to global problems such as global warming, the widening gap between rich and poor countries, and terrorism , then it really is “stupid for Europeans and Americans to waste any more time squabbling with each other.”58 Europeans and Americans have their differences when it comes to transatlantic dialogues on human rights. Some of these are based on different political views – others are based on cultural differences. In a certain sense, Europe and the U.S. have always used each other to define who or what they were not and who or what they would definitely never want to be. “The United States was born in rebellion against one European power, Great Britain, in cooperation with another, France, whose assistance was crucial in the winning of America’s independence,” as Norwegian historian Geir Lundestad once

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Anderson, 2007, p. 17. Anderson, 2007, p. 21. Timothy Garton Ash, Free World: America, Europe and the Surprising Future of the West. Vintage Books, New York 2004, p.176.

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reminded us.59 No wonder, therefore, that the relationship with Europe has always been somewhat ambivalent. As for the more political side of things, there is something slightly ironic about the fact that the tendencies in Europe toward more human rights talk, which Jeremy Rabkin and certain other American critics find so terrible, are accompanied by political and judicial changes that may well be due, at least in part, to an American influence. As American political scientist Anne-Marie Slaughter puts it, America’s greatest judicial exports all revolve around the protection of minority rights. The institution of judicial review itself is designed to prevent the will of the majority from ever overriding the rights guaranteed in a democratically approved constitution. The United States directly ensured that the high courts of Germany and Japan would exercise judicial review; the chief architects of the European Court of Justice’s assertion of the equivalent of judicial review were European judges educated in the United States…60 American politics has always been highly Constitution centered. Another way of putting it is to say that American democracy is a constitutional democracy. Modern constitutionalism is generally considered to have its practical beginnings in the making of the American and the French constitutions during the late 18th century and from the beginning, it has developed into two quite different main directions: “The Americans chose a way which stabilised constitutionalism based on judicial review and checks and balances, whereas the citizens of Western European countries chose a way which brought them towards modern democracy and close to unlimited parliamentarism.”61 In its political version, the American Dream – that is, the personalized or individualized version of American exceptionalism – is very much about having rights: the rights and freedoms outlined in the Constitution. As European countries are becoming more multi-ethnic and less consensus-oriented, 59

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Geir Lundestad, The United States and Western Europe since 1945: From ’Empire’ by Invitation to Transatlantic Drift. Oxford University Press, Oxford 2003, p. 22. The next few paragraphs build on Lundestad’s book. Anne-Marie Slaughter, “A Brave New Judicial World”, in Michael Ignatieff (ed.), American Exceptionalism and Human Rights. Princeton University Press, Princeton, NJ, 2005, p. 277-303. (p. 301). Ágúst Thór Árnason, “Constitutionalism: Popular Legitimacy of the State?,” in Martin Scheinin (ed.), Welfare State and Constitutionalism – Nordic Perspectives. Nordic Council of Ministers, Copenhagen 2001, p. 46.

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many Europeans are beginning to listen to the view that the solution to the gravest flaws of majoritarian democracy may be found in constitutionalism in the form of a judicial review. “In order to reconcile democracy and human rights,” argues Michael Ignatieff, “Western policy will have to put more emphasis not on democracy alone but on constitutionalism, the entrenchment of a balance of powers, judicial review of executive decisions, and enforceable minority rights guarantees. Democracy without constitutionalism is simply ethnic majority tyranny.”62 Among the elements that make up our shared intellectual and cultural heritage, it has been argued in this chapter, one of the most important is our rights tradition. Those same Americans who denounce Europeans as colonizers and aggressors only will be the first to use their courts to fight for equality and for the rights of minorities. And those same Europeans who scorn the U.S. for failing to commit to international law and human rights are well on their way toward using solutions to current European problems with multiethnicity that look oddly familiar from an American context. Rights, in other words are central to who we are and to how we intend to solve problems on both sides of the Atlantic. There’s no hocus pocus in that!

Literature and sources Joyce Appleby, “Recovering America’s Historic Diversity: Beyond Exceptionalism.” Journal of American History 79, 1992. p. 419-31. Anderson, Perry, “Depicting Europe,” London Review of Books, Vol. 29 No. 18, 20 September 2007, p. 13-21. Árnason, Ágúst Thór, “Constitutionalism: Popular Legitimacy of the State?,” in Martin Scheinin (ed.), Welfare State and Constitutionalism – Nordic Perspectives. Nordic Council of Ministers, Copenhagen 2001. Garton Ash, Timothy, Free World: America, Europe and the Surprising Future of the West. Vintage Books, New York 2004. Cox, Michael, “Another Transatlantic Split? American and European narratives and the End of the Cold War.” Cold War History, Vol. 7, No. 1, Febr. 2007, p. 121-46. de Búrca, Gráinne, “Towards European Welfare?,” in Gráine de Búrca (ed.), EU Law and the Welfare State: In Search of Solidarity. Oxford University Press, Oxford 2005. p. 1-10. 62

Michael Ignatieff, “Human Rights as Politics,” in Amy Gutman (ed.), Human Rights as Politics and Idolatry. Princeton University Press, Princeton, New Jersey 2001, p. 3-52. (p. 30).

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‘The European Security Strategy: A Secure Europe in a Better World,’ Brussels, 12 December 2003, 8 – available at http://consilium.europa.eu/uedocs/cmsUpload/78367. pdf (last visited on January 11, 2009). European Parliament Resolution of 12 December 2007 on the Fight against Terrorism. ( available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-// EP//TEXT+TA+P6-TA-2007-0612+0+DOC+XML+V0//EN&language=EN – last visited on June 19, 2012). Giddens, Anthony, Europe in the Global Age. Polity Press, Cambridge 2007. Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse. The Free Press, New York 1991. Goldhaber, Michael D., A People’s History of the European Court of Human Rights.: Rutgers University Press, New Brunswick NJ 2007. Ignatieff, Michael (ed.), American Exceptionalism and Human Rights. Princeton University Press, Princeton and Oxford 2005. Ignatieff, Michael, “Human Rights as Politics,” in Amy Gutman (ed.), Human Rights as Politics and Idolatry. Princeton University Press, Princeton, New Jersey 2001, p. 3-52. Kagan, Robert, Of Paradise and Power: America and Europe in the New World Order. Knopf Doubleday Publishing Group 2003. Karst, Kenneth L., Belonging to America: Equal Citizenship and the Constitution. Yale University Press, New Haven, Conn. 1989. Karst, Kenneth L., Law’s Promise, Law’s Expression: Visions of Power in the Politics of Race, Gender, and Religion. Yale University Press, New Haven, Conn. 1993. Katz, Stanley N., “U.S. Constitutionalism and International Human Rights: Incompatible?,” 2003, which used to be available online at http://web.ceu.hu/legal/universalism%20and%20local%20knowledge%20in%20HR%202003/Katz_paper. htm. Kilbourne, Susan, “Placing the Convention on the Rights of the Child in an American Context,” in Henry J. Steiner and Philip Alston (eds.), International Human Rights in Context: Law, Politics, Morals. 2nd edition, Oxford University Press, Oxford 2010. Mark, Leonhard, Why Europe will run the 21st century. Fourth Estate, London and New York 2005. Levinson, Sanford, Constitutional Faith. Princeton University Press, Princeton, NJ 1988. Lundestad, Geir, The United States and Western Europe since 1945: From ’Empire’ by Invitation to Transatlantic Drift. Oxford University Press, Oxford 2003 Moravcsik, Andrew, “The Paradox of U.S. Human Rights Policy,” in Michael Ignatieff (ed.), American Exceptionalism and Human Rights. Princeton University Press, Princeton and Oxford 2005. p. 147 -97.

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John F. Murphy, The United States and the Rule of Law in International Affairs. Cambridge University Press, Cambridge 2004. Porsdam, Helle, From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe.Edward Elgar, Cheltenham, UK 2009. Porsdam, Helle, “Human rights: a possible civil religion,” in Helle Porsdam (ed.), Civil Religion, Human Rights and International Relations: Connecting People Across Cultures and Traditions. Edward Elgar, Cheltenham, UK 2012. Porsdam, Helle, Legally Speaking: Contemporary American Culture and the Law. University of Massachusetts Press, Amherst, MA 1999. Rabkin, Jeremy, Law Without Nations? Why Constitutional Government Requires Sovereign States. Princeton University Press, Princeton and Oxford 2005. Reynolds, David, The Origins of the Cold War in Europe: International Perspectives. Yale University Press, New Haven, CT 1994. Rifkin, Jeremy, The European Dream: How Europe’s Vision of the Future is Quietly Eclipsing the American Dream. Polity Press, Cambridge 2004. Slaughter, Anne-Marie, “A Brave New Judicial World”, in Michael Ignatieff (ed.), American Exceptionalism and Human Rights. Princeton University Press, Princeton, NJ, 2005, p. 277-303. Slaughter, Joseph R., Human Rights, Inc: The World Novel, Narrative Form, and International Law. Fordham University Press, New York 2007. Steiner, Henry J. & Alston, Philip (eds.), International Human Rights in Context: Law, Politics, Morals. Oxford University Press, Oxford 2000, 2nd edition. Sunstein, Cass R., The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever, Basic Books, New York 2004. Whelan, Daniel J., “The United States and economic and social rights: past, presents... and future?”, Human Rights & Human Welfare, Working Paper No. 26, 2005, online at http://www.du.edu/korbel/hrhw/workingpapers/2005/26-whelan-2005. pdf, 7 - (last visited on June 17, 2012). Winkler, Heinrich August, Geschichte des Westens. Von den Anfängen in der Antike bis zum 20. Jahrhundert (The history of the West: From its beginnings in antiquity to the 20th century). C.H. Beck, Munich 2009.

chapter 7

Law as Identity – Diffferent Identities and Diffferent Human Rights Conceptions in Europe and the United States1 Sten Schaumburg-Müller

Introduction Human rights are to a large extent codified in a range of legal documents and practices, from international covenants over national constitutions to statutory provisions, and from international courts to national courts and administrative authorities. In other words, human rights are as much law as anything else. The purpose of the present contribution is to point out an aspect of law that may be of particular interest to human rights law, namely the aspect of identity. I contend that community identity is an integral part of law, implying that law plays a part in shaping the particular identity of a particular community or society. The identity aspect has largely been ignored by the major legal schools and philosophies, such as natural lawyers, legal positivists, legal realists etc. However, its relevance becomes even more urgent in relation to human rights law, which, by definition, does not pertain to any particular group or society, but to all human beings. In the following I shall give an exposition of the general identity element of law, followed by an attempt to point out some differences in European and US American identity.

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I started working on the idea of “law as identity” in a law and literature context, viewing law also as a kind of narrative, a story, a tale of identity. Since then I have been working on the idea in different contexts: Sten Schaumburg-Müller, “In Defense of Soft Universalism. A Modest, Yet Presumptuous Position”, in Antonio-Luis Martínez-Pujalte and Susana Sanz Caballero (eds), Cuadernos Constitutionales de la Cátedra Fadrique Furió Ceriol. Carlos Flores Juberías , Vol. 1 62/63 Universitat de Valéncia, 2011. p. 113-126; and Sten Schaumburg-Müller, “Ret som fællesskab og identitet. Skitse til en retsfilosofi”, in Sten Schaumburg-Müller and Jens Vedsted-Hansen (eds.), Om ret, individ og kollektiv. DJØF Publishing, Copenhagen 2011, p. 33-56. The articles have different approaches, yet some overlap is unavoidable.

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I shall wind up by giving some perspectives on the identity aspects in relation to human rights, claiming to be universal.

We are How We Ought to Behave In Leviticus, Chapter 18, Verse 23, it is stated that “You shall not lie with any animal and so make yourself unclean with it, neither shall any woman give herself to an animal to lie with it: it is perversion.” This is clearly not merely a description of behavior, but a proscription of a certain type of behavior. Whether such behavior was widespread or whether it rarely occurred is not possible to assess. But we can safely conclude that it was known and forbidden. Interestingly, Verse 3 of the same chapter provides that “You shall not do as they do in the land of Egypt, where you lived, and you shall not do as they do in the land of Canaan, to which I am bringing you. You shall not walk in their statutes”. Thus, the identity aspect appears important. The prohibition, together with many others, appears to be part of an identity marker, a kind of boundary maintenance2 in which Israelites are sought to be kept apart from their neighboring communities, the Egyptians and the Canaans. Whether, in fact, the last mentioned had a more widespread practice of sodomy or whether they had similar rules against it is difficult to tell. What we can tell, however, is that the ban on sodomy is a part of the Israelites’ self-identification: we are the ones who ought not to have sex with animals. Conceived this way, law plays a role in the process of community identification. I contend that this is an aspect of law in general, that law is a component in the making of group identity. Of course, not every bit and piece of whatever law can be found has this capacity. But in general, law plays a role in the making of the necessary group identity, and, in general this aspect has been ignored by all major schools of legal philosophy.

Human Beings are a Gregarious Species The “we are how we ought to behave” aspect is closely related to the fact that human beings are social beings, a species in which the individuals live in communities. This conception is by no means new, but it is corroborated 2

Cf. Fredrik Barth, “Introduction”, in Fredrik Barth (ed.), Ethnic Groups and Boundaries. The Social Organization of Culture Difference. Universitetsforlaget, Bergen 1969. The boundary maintenance aspect is further expounded below.

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and nuanced by anthropology and evolutionary psychology. Since the origin of the human species, we have lived in groups, in communities, similar to other species such as ants, wolves and lions, and in contradistinction to sea turtles, tigers and polar bears. It is probably an evolutionarily developed capability, a “strategy” for survival, not of course as a conscious policy by our forefathers, but as a means of survival. “The small strength and speed of man, his want of natural weapons, &c., are more than counterbalanced by his … social qualities, which lead him to give and receive aid from his fellow-men,” as Darwin put it.3 This development is contingent in the sense that a species does not require social capabilities in order to survive – e.g. crocodiles are one of the longest existing species, more than 300 millions years, without any particularly well-developed community capacity, but with other talents. The fact that living in communities is a natural trait of human beings does not imply necessity, merely that this is the way this species has developed. Our biology is developed and organized in such a way that we are very apt at living in communities, we can communicate rather ingeniously, and we have a sense of reciprocity and a sense of the common good, by no means perfect, but it is conspicuous compared to e.g. crocodiles.4 This community capability, or to frame it more strongly, this community necessity, does not imply that we cannot live like Robinson Crusoe for some time, but only that this is an exception and only possible because of the communally developed skills and talents. It does not imply, either, that we have no sense of individuality – on the contrary. Human beings have developed individuality precisely because of our community life. Polar bears do not need a particularly strong sense of individuality, whereas gregarious species may develop this capacity. Chimpanzees, elephants and maybe dolphins have the capacity to recognize themselves in a mirror, and human beings have developed this sense of the self to a very intricate level. The community is a prerequisite for language, judgments, truth, norms, law and even rights. It appears to be obvious that language presupposes a community, but also our capacity to judge has a social element: “Zur Verständigung durch die Sprache gehört nicht nur eine Übereinstimmung in den Definitionen, sondern (so seltsam dies klingen mag) eine Übereinstimmung

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Charles Darwin, The Descent of Man (orig. 1871), here cited from Martin A. Nowak, Robert M. May and K. Sigmund, “The Arithmetics of Mutual Help”, Scientific American, Issue 6, 1995, p. 76-81. Frans de Waal, Primates and Philosophers. How Morality Evolved. Princeton University Press, Princeton NJ 2006.

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in den Urteilen.”5 Please note that Wittgenstein is not talking of total agreement. It is, of course, possible to disagree, but the option of disagreeing presupposes agreements on some points. Similarly, Charles S. Peirce has pointed to the fact that “truth” requires a community, not in the sense that the community is the supreme arbiter of truth, but in the sense that “truth” only functions in a community.6 Finally, it is important to note that human beings have the capacity to live in more than one community. As a matter of fact human beings will always live in at least two communities, the family, in whatever way the family is constituted, and the larger society.7 Not only is the human being a gregarious species, it also has the capability to be part of more than one community (in the broad sense of the term), being able to cope with more than one set of norms, or laws. Thus, we are not doomed to live in one particular community all our lives, but we are doomed to be part of a community, or rather communities.

Universality and Particularity It is important to note that whereas living in a community is a universal or general condition for human beings, the particular community to which the individual belongs is, of course, not universal, even though it may be conceived as such by the participants. An individual is always thrown into a particular group,8 the individual cannot choose in which culture s/he is born, which language s/he will have as her/his mother tongue, which norms s/he will be socialized into etc. At a later stage the individual may have a choice of her/his own, an exit option or an option for change, but by then the individual 5 6

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Ludwig Wittgenstein, Philosophische Untersuchungen. Suhrkamp, Frankfurt 1977 (orig. 1953), § 242, p. 139. Charles Sanders Peirce, “Consequences of Four Incapacities”, in Charles Hartshorne, Paul Weiss and Arthur Burks (eds.), Collected Papers of Charles Sanders Peirce. Harvard University Press, Cambridge MA 1931-1958, vol. 5, § 311 (orig. 1893). The capacity of smaller families is probably also connected to evolution. When prehistoric human kinds tamed the fire, they made it possible to cook the food, thereby being able to take in larger quantities of calories in shorter time. Richard Wrangham, Catching Fire. How Cooking Made Us Human. Profile Books, London 2009. This might have led to or strengthened the division of labor between the sexes and facilitated the creation of the smaller family unit. Martin Heidegger uses the term “Geworfenheit” in Martin Heidegger, Sein und Zeit. Max Niemeyer Verlag, Tübingen 1967 (orig. 1924), p. 175.

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already has internalized the norms of the first society to some extent. To put the point differently: generally, human beings are living in communities, but different individuals may belong to different communities, including families, tribes, peoples, nations etc. It is universal for human beings to speak a language, but no language is (so far) universal; and it is universal for human beings to be socialized into a normative field with existing norms, expectations and even law, but the particular norms and the particular laws are not universal, at least most of them are not.9 The distinction, I contend, is important. Human beings are not only social beings, but we also belong to particular groups with particular languages, norms, cultural traits etc., and we cannot help having our point of departure in a particular setting. This is by no means a culturally relativistic position. I do not claim that we are forever doomed by the society into which we happen to be born and (or socialized, as in the case of cross-cultural adoption). Human beings are generally able to leave their community – one could even argue that this is a condition, too, as everybody has to leave their parents or whoever brought them up – and we can even change the community to some extent, reflect on and improve the norms etc. All I claim is the fact that apart from being a social species, human beings belong to different groups, groups which necessarily have somehow differing norms and differing laws. Painted with bold strokes, one could argue that the first point has been understood by a large part of legal philosophers, ranging from St Thomas of Aquinas to G.W.F. Hegel and Jürgen Habermas, leaving out contract philosophers who wrongly believed that the natural state of man is a state of individuality.10 As for the second point, this is hardly taken in by legal philosophers, who have by and large ignored the distinction between analyses of law and analyses of the law prevailing in their community.11

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Presently, I shall not venture into the discussion whether there are or ought to be universal norms. Here, it suffices to state that definitely not all norms are universal, and that the different sets of norms are somehow connected to different communities. I am not implying that every tenet of contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau is mistaken, but I do maintain that their basic understanding of nature and society is mistaken. As regards international relations theory, which is also relevant for understanding human rights in Europe and the Americas, one could point to liberalism and realism as schools somewhat unable to grasp the varieties of the real world, liberalists taking the abstract individual, realists the abstract state as points of departure. Constructivism is in a better position to grasp that the communities in which we live are to some extent constructs and imagination. See further below.

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Boundary Maintenance Even though communities are natural in the sense that human beings cannot live without them, the particular communities are not natural entities with stable demarcation, set boundaries and fixed identities. Rather on the contrary, communities have porous borders, and there is a constant inflow and outflow of members and there are constant cross-boundary connections. The social anthropologist Fredrik Barth points out that cultural differences persist despite ever-present inter-ethnic contact and interdependence,12 and even though there may be large local varieties – some communities will have greater inflow of people, some will have greater outflow – the central point is that particular communities exist, and most often persistently, even though the entity is by no means fixed. As an example Barth mentions the Yao in southern China. This community has (or had) an inflow of 10% of the population per generation, mainly male Chinese moving in, without the community losing its identity and without the Yao becoming Chinese. Rather, the immigrants became Yao. In order to uphold the identity of the particular community, it will engage in “border maintenance”. Barth emphasizes that there is no necessary connection between objective features and the features which the actors themselves find important. As in the Bible, the Israelites point out that they are not supposed to have sex with animals as opposed to others, but whether this is an objective feature, that they in fact have less sex with animals or that the Egyptians and Canaans do not have a similar proscription, is simply not important. The central point is that they are engaged in boundary maintenance, having certain ascribed features which are used in order to distinguish them from other groups – in which aspiration they have been quite successful, one might add. Thus, in order to keep up distinct communities, human beings engage in maintaining boundaries between the communities, as these do not exist forever fixed as natural entities. According to Barth, this conspicuous activity is carried out in basically two ways: Either by overt signals or signs (dress, hair style, housing etc.) or by basic value orientation: “Having [a] basic identity ... also implies a claim to be judged, and to judge oneself, by those standards that are relevant to that identity.”13 Thus, engaging in judging, engaging in applying standards, or in others words, engaging in law entails an element of boundary maintenance, of the creation and the making of the identity of the particular group 12 13

Barth, 1969, p. 9. Barth, 1969, p. 14.

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or community. Barth mentions other strategies for border maintenance, such as making fun of persons who do not maintain the borders properly. (As examples he mentions making fun of effeminate men in order to uphold the distinction between men and women and of the proletarian pretending to be upper class in order to uphold the distinction between the various strata of society). For the present purpose, the normative ascription of standards and engaging in judging is the main point: law plays a part in upholding distinctions between communities.

Imagined Communities As appears from the above sections, communities are natural in the sense that human beings live in communities. However, communities are not fixed natural entities as they most often14 engage in exchange of persons, commodities and ideas, and they are not mere facts as they are also, in a sense, imagined. Benedict Anderson has expounded on this aspect in his renowned work Imagined Communities: “All communities larger than primordial villages of face-to-face contact (and perhaps even these) are imagined.”15 Anderson’s point is that as regards communities in which we do not know all members, we have to have, or we simply do have imaginations of the community, imaginations of this particular connectedness. Anderson is dealing with the nation mainly as a successfully imagined community, and he elaborates on all sorts of imaginations of the national, such as the grave of the unknown soldier, newspaper reading most often in the national language, dealing mainly with national events etc. The central idea is that in larger communities we need to have some imaginations as regards the coherence of the community. In my perception all communities – even the small ones – seem to involve some imagination of what is common to this particular community, but for the present purpose it suffices to point out that communities are not solely factual entities, but also ideational, involving a creative human understanding of the community. Anderson emphasizes that there is no “real” community behind the imagined one. The imagination is not fake, not a misrepresentation; yet, it is not a 14

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Every now and then communities may be isolated, as was the case with Japan from approximately 1600 to 1868. However, such incidents are exceptions, and, more importantly, communities exist even with intense exchange with other communities. Benedict Anderson, Imagined Communities. Verso, London 2006 (first published 1983), p. 6.

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stringent representation, either. The imagination loses its power if it merely represents reality. Understood this way, communities are not only what they are, but also how they are imagined, and the imagination is in itself part of making up the particular community. “The mind and the world jointly make up the mind and the world” as Hilary Putnam puts it.16 Presumably, the imagining of one’s own society goes together with the imagining of other societies to which different characteristics are ascribed in order to maintain the boundaries. Thus, the Israelites apparently imagined the Egyptians and Canaans as peoples who had or were allowed to have sex with animals even though this may not have been the case.17 Obviously, law participates in the imagination of the particular community. Law is not a precise depiction of reality – if this were the case, law would be perfectly superfluous – and neither is law a fake representation. Law is rather a kind of imagination, an idea of how things ought to be, how the members of that particular community ought to behave. I am not claiming that law is nothing more than imagination. Rather, I contend that law is also imagination, and that we cannot understand law if this aspect is not taken into consideration. It is frequently held that law has a dual character with a factual and an ideational side.18 My additional point here is that the ideational side is a creative imagination, not only directed at a universal ought, but as much directed at imagining the present community. I am not claiming, either, that law does nothing but contribute to the making of the identity of a community. Law may do all sorts of things, regulate society, mark out justice, serve as showpieces etc., and law will no doubt work in different ways in different situations (opening for more empirical research on these issues). All I am claiming is that law participates in this imaginative activity, the creation of a communal identity, and that we do not grasp law, including human rights law, satisfactorily if we do not take this aspect into consideration. Besides, law is not the only identity maker, not the only imaginatory power, not the only border guard. The part played by law inevitably varies among different communities, some in which law plays a big part, some in which it does not. But law in the broad sense of the term does play a part in the imagination of 16 17

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Hilary Putnam, Reason, Truth and History. Cambridge University Press, Cambridge 1981, p. xi. Helle Porsdam has vivid examples of European imaginations of the US and vice versa. (Helle Porsdam, From Civil to Human Rights. Dialogues on Law and Humanities in the United States and Europe. Edward Elgar Publishing, Cheltenham, UK 2009, the chapter on “Transatlantic Perceptions”, p. 51-60). See e.g. Robert Alexy, “The Dual Nature of Law”, Global Harmony and Rule of Law, IVR 24th World Congress. Papers. Plenary Sessions, 2009, p. 257-274.

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the particular community and it does play a part in the maintenance of community borders. Interestingly, not least in the present setting, Anderson points out that the emergence of nations as a community of paramount importance was primarily a Creole phenomenon. Europeans may have a propensity to conceive nations as a European invention, emerging from the Peace of Westphalia of 1648 creating independent sovereign states. However, even though it is reasonable to conceive of this moment as the starting point of an emerging system of states, it is important to realize that most of the European states were states at home and empires abroad. Thus, the system of states was not a global phenomenon, but rather a local European way of settling its internal affairs, while at the same time acting differently wherever possible in the remainder of the world. This is where Anderson comes in: the idea and the creation of nations were precisely the Creole answer to European imperialism. The Americans wanted to be recognized on a par with the Europeans, including having a state of their own. Anderson goes into detail in explaining how the nation could be “emotionally plausible and politically viable”,19 among other things pointing to the fact that in Spanish America only peninsulars were eligible for official posts of any importance. Hence arises the idea of being born in America and the idea of being a national wanting to be treated on an equal basis with any other nationals. Only later, when nationalism was appropriated by the European empires, the Romanovs, the Hannovers, the Hapsburgs and the Hohenzollers,20 did nationalism acquire a more chauvinistic and racist turn. By taking over the idea of a nation, the European empires tried to Russify, Anglify etc. other ethnic groups while at the same time, as in the Spanish empire, reserving the higher positions for real Russians, real British etc. The points that I am forwarding are twofold: firstly, communities are not mere facts but are also imagined, and law, including human rights law, plays a role in this imagining, in the creation and upholding of different communities by creating and upholding different norms. Secondly, the particular concept of nation, of the particular community of a nation, is very much an American creation, forwarded by Creoles who did not want to be subjects in an empire, but preferred to be citizens in a state on a par with the European states. The second point suggests that human rights may have more of an American origin than is usually held by Europeans; and the first point suggests that even

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Anderson, 2006, p. 51-52. The Russian, the British, the Austro-Hungarian and the (late coming) German empires, respectively. Republican French nationalism was of a somewhat differing character.

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human rights law will be part of various communities’ activities to keep up the identity of the community.

Legal Philosophy The identity aspect seems to be ignored by most schools of legal philosophy. Roughly, legal positivism conceives law as orders from an unfettered sovereign to subjects who are obliged to abide by the orders, if necessary by use of (legitimate) force.21 This conception presupposes a system of sovereigns with a matching population, i.e. a system, exactly as the one developed after the Westphalian peace of 1648 and the coinciding termination of the English civil war. This system is probably rather unique in world history and may be related to the specific situation in which the sovereign, equal states with defined territories and population were at the same time empires in the rest of the world with much less defined borders between sovereign, territory and population. What is crucial here is the fact that legal philosophy has operated with a conception of equal, autonomous states, implying one type of law within the respective states (municipal, domestic or national law) and another type between the entities (international law),22 and with, at best, an ambiguous application of either type of law in non-European territories. The idea of equal states is an imagination in the sense that there actually existed a system or even society23 of geographically limited communities, while at the same time the model was of an ideal type, not describing reality, but playing a part in creating that very same reality. Legal positivism has largely focused on one type of community, namely the state, which as a matter of course was conceived of as being natural, and in addition an emerging society of (European) states, the emerging international law, which precisely was denied the status of law by the English legal philosopher John Austin (1790-1859). Thus, 21

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H.L.A. Hart’s legal positivism differs in relation to the “orders backed by threat” model, the “gunman model of law”, according to Hart. However, there is no aspect of identity in Hart’s legal positivism, either. Precisely in the late 17th century the “jus gentium” acquires its present meaning of international law, “Völkerrecht” or “droit des gens”, i.e. the law between peoples. Previously, the term had designated the law prevailing in the Roman Empire among persons of different origin in contradistinction to jus civile, the law prevailing to Romans. Arthur Nussbaum, A Concise History of the Law of Nations. Macmillan, New York 1947, p. 19. Hedley Bull, The Anarchical Society. A Study of Order in World Politics. Macmillan, London 1995, 2nd ed. (1st ed. 1977), makes the distinction between system and society at the international law. As regards his concept of law, Bull is taking over from H.L.A. Hart.

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legal positivism has not been able to grasp the diversity of communities and therefore not been able to understand the role of the law in the creation of the many different and asymmetric communities. Neither has legal positivism been able to grasp the role of the law as regards the creation of identity within the various communities.24 The school of rationalistic natural rights philosophers assumes that individuals exist fully developed, highly rational and endowed with rights before they decide to enter into the state, whose task it is to protect those very rights. This approach is even more ill-suited for an understanding of law as community and identity. At least legal positivism had a notion of one category of communities, the many equivalent states with different domestic law.25 In contradistinction, the natural rights proponents basically conceive law as an individual phenomenon, independent of existing communities. Local traditions such as the US American, whose Declaration of Independence is deeply rooted in this Locke’an type of natural rights thinking, have difficulties in understanding law as identity and apparently more easily fall prey to a “we are the world” notion. Law is conceived in universalistic terms without integrating the contingent, identity-creating aspect. A legal philosopher who has actually included the identity aspect is Friedrich Carl von Savigny (1779-1861).26 He conceives law, people and language as interwoven, and he focuses on the identity of a particular people and the interconnectedness with the law and the language. He warns against legal positivism and its overrating of the potential of the legislature, as if legislation can achieve whatever it desires. Savigny rejects the idea that the legislator can make law out of whatever political wish without taking the actual prevailing law within the particular community (for Savigny “das Volk”) into consideration. He also warns against a universalistic approach, the natural rights theory, which considers it possible to point out fundamental universal principles as a basic component of any legal system, while in reality law unconsciously reflects its own experiences and traditions. Savigny conceives the people as a living organism and with a definite identity, developing from childhood to the vigour of the youth, the mature reflection of manhood (in 1814 German 24

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I am not claiming that all types of norms in all types of communities have the status of “law”. The precise definition of law is not central to the present argument, and it suffices to state that by any reasonable understanding of law, it cannot be limited to a certain type of norms created in centralized states. By understanding law as a set of different, independent legal systems, legal positivism is pluralistic. See Friedrich Carl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft. Mohr und Zimmer, Heidelberg 1814.

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was at its height of manhood, according to Savigny) and the forgetfulness and decay of old age. Just as language develops and keeps its identity at the same time, so do law and people. According to my perception, Savigny has a point in criticizing legal positivism’s perception of law as something merely to be decided, at the discretion of the sovereign, the legislator or the judge. The law exists already, and not any decision made by the legislator has the capacity of becoming effective law. He has a point in warning against generalizing from one’s own particular experience and tradition, including understanding law as being equal to the law that contingently prevails in one particular community; and he has a point warning against conceiving law as being based on a few, basic values or principles. Yet, Savigny misconstrues “Volk” as if it were a clearly defined entity. Similar to the legal positivists he assumes the existence of one community of paramount importance in relation to law, only that legal positivism’s preferred entity, the state, in fact corresponded to an existing entity at least in Western Europe. In comparison “people” is no such easily fixed entity with an easily recognizable identity, as more recent social anthropology has shown. To Savigny, a people exists spontaneously and as a matter of course with its cultural traits, language barriers and socially detached from other peoples. But a people or any other ethnic group does not exist as a pre-packaged entity, ready to enter the stage, as e.g. Barth has shown.27 Here, Savigny repeats the liberalistic failure of presupposing a fixed isolated entity, for the liberalists the individual, for Savigny the people. Ethnic groups are not isolated as inhabitants of a desert island, but are engaging in all sorts of interaction such as exchange of women,28 slaves, trading in other commodities and exchanging of ideas, including linguistic expressions and legal institutions, while at the same time persons are migrating in and out of the various communities. It is not wrong to work with collective entities such as “Volk” or ethnic groups, but it is wrong merely to presuppose their existence and especially their demarcation from other groups as totally unproblematic. In addition, it seems to be impossible to link certain cultural features to a certain group and its history. At a certain time, specific cultural traits may be used as markers of identity, as border guards, but there will be subgroups within the group which share few of the claimed identifiers,29 and with the passing of time it will be dif27 28 29

Barth, 1969. Claude Lévi-Strauss, Les Structures élémentaires de la Parenté. Presses Universitaires de France, Paris 1949. Barth mentions Norwegian farmers as an example. The Danish Thomas Højrup published in 1983 Det glemte folk, Statens Bygningsforskningsfond, 1983, with a similar

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ficult, if not impossible to point out cultural traits specific for only one particular community. Besides, Savigny has as little understanding of several layers of communities – human beings are regularly members of more than one community – as the legal positivists and the natural rights philosophers. Savigny understood the significance of identity in relation to law and community (which he understood as “Volk”), but he perceived the identity as a pre-existing phenomenon. And he held as his great idea that it was possible to find the identity in an underlying structure, which for language lay in the grammar and as for law in the basic legal principles.30 But, as we know now, communities are by no means fixed entities, let alone entities with a life like a single human being with childhood, adolescence, manhood and old age. Identity is not a given, rather it is continuously under construction and reconstruction. All the same, identity in relation to a group does appear to be an inherent feature of human life, and law does appear to play a part as both a maker and a marker of community identity. Acknowledging this aspect of identity generation, the aspect of law participating in a process of identity is an important element in understanding law, and it should not be ignored.

Law as Experience “The life of the law has not been logic: it has been experience”, Oliver Wendell Holmes points out in his famous book on the common law.31 Holmes was mainly arguing against C.C. Langdell and the idea, also prevalent in Europe at the time, that law is or at least ought to be a logical system, in which solutions can be deducted. In opposition to this idea, Holmes argues that law is experience, and in order to understand law we must look to the development and history of the particular community: “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” For the present purpose, Holmes’ idea of law as experience adds a component to

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point. As regards German law, he believed that he could find the common ground in Roman law, cf. his eight volumes: Friedrich Carl von Savigny System des heutigen römischen Rechts. Veit und comp., Berlin 1840-49. Oliver Wendell Holmes, The Common Law. Little, Brown & Company, Boston1881. Here quoted from Project Gutenberg at http://www.gutenberg.org/cache/epub/2449/ pg2449.html (Lecture One, first and second paragraph).

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the idea of law as identity. A community is not just haphazardly inventing its identity, and neither does it create traits well-suited for border maintenance – i.e. for distinguishing the community group from another – totally at random. The identity is shaped or rather influenced by a lot of factors, including, of course, the past experience of the community. The experience does not have to be particularly attached to the community in question (cf. above on the problems of perceiving a community as a fixed entity), and Holmes includes “procedures of German tribes (and) the social condition of Rome under the Decemvirs” into the experience of common law, relevant in Massachusetts and the US in 1881. The central point here is that experience plays a part in shaping the law and the identity of a community. Some examples may be illustrative: in 1939, Denmark enacted a hate speech clause, made in order to cope with the gross derision of especially Jews. The act was based on experience such as the Reichskristallnacht in Germany in 1938 and sporadic anti-Semitic pamphlets etc. in Denmark. And it was an identity marker: we are not Germans – an important issue for a small nation of Germanic origin – and definitely not Nazis.32 After the war, the German Basic Law (Grundgesetz) of 3 May 1949 was enacted, and the first 19 articles deal with the protection of human rights. This is based on the experience with the Nazi regime, totally rejecting human rights,33 and it also serves as an identity marker: we are Germans, but neither Nazis nor Soviet communists.34 Similarly, the European Convention on Human Rights, adopted in 1950, was based on experience, the insufficiency of national protection, and an identity marker, as well. We are Europeans, we are not Russians, not Soviet communists and, of course, not Nazis at all. In comparison, the 1776 US Declaration of Independence, also emphasizing rights, was based on the American experience with Europe and especially the English King, and an identity marker: we are Americans, not Europeans. Thus, generation of law is an activity undertaken in order to cope with problems (or rather, coping with problems is one aspect of law-making, as there may be all sorts of other issues involved), and somewhat different problems will result in somewhat different law, which, in turn, will contribute to a somewhat different perception of identity. 32

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In Danish post-war defamation law, words like “Nazi”, “Fascist” or “racist”” were always deemed derogatory, unless the defendant could prove that the plaintiff actually belonged to a Nazi Party or the like. From the identity aspect, this is boundary maintenance: Danes are simply not racists, Fascists or Nazis. In fact, Adolf Hitler claimed that the only “human right” was the right to keep the blood clean. Raino Malnes and Knut Midgaard, Politisk tenkning. Universitetsforlaget, Oslo 2003, p. 232. The Constitution of the German Democratic Republic was enacted later the same year.

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Diffferent Identities – Diffferent Human Rights Perceptions As appears from the above, communities have a propensity to engage in boundary maintenance, an attempt to construct a common identity in a somewhat fluent world of human interaction. And it is my contention that law plays a part in this construction of community imagination. In the present section I shall present some ideas on the interconnectedness of European and US American identities and European and US American human rights perceptions. Before expanding on these ideas, I shall make some preliminary remarks. Firstly, I am not defending a cultural relativistic position. I simply want to sketch out some ideas corroborating the contention that law is a part of community identity-making, and, as a consequence, that a European concept of human rights may make more sense in Europe than in the Americas (and vice versa). Differing ideas and conceptions of phenomena such as human rights may make sense from the different perspectives. Of course, they may not make sense. Nothing in the world provides a warrant for our perceptions and ideas. However, it may make sense to have a rather unlimited freedom of speech in the US and a more balanced one in Europe, it may make sense for Europeans to favor international regulation and for US Americans to prefer US national protection etc. Some years back, when I participated in a board meeting at the Danish Institute of Human Rights and we were discussing transatlantic human rights issues, some members simply dismissed American human rights perceptions as wrong: not connecting rights to the international legal sphere was a basic misunderstanding of prevailing law. In contradistinction, the idea presented here is that such different understandings are not simply wrong, rather they may be exactly different understandings – even though, of course, as any other understanding not uncontestable. Secondly, I am not claiming that there is a specific European identity as an identifiable entity – or an American or US American or any other for that matter – and I doubt whether it is possible to find one.35 Rather I am merely making the remark, or the reminder, that identity is partly shaped by law, a point that is independent of whether we are in fact able to carve out a specific European or any other identity. 35

As an example Ulrich Beck and Edgar Grande claim that “modern Europe has developed out of a conscious attempt to come to terms with and never forget the past”. This is largely true for Germany, but much less so for France, still having problems with defeat and the Vichy regime, and for Spain which in the successful transition to democracy ignored the past, not to speak of Russia. Ulrich Beck and Edgar Grande, Das kosmopolitische Europa. Suhrkamp, Frankfurt 2004, p. 21, here quoted from Porsdam, 2009, p. 17.

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Thirdly, my aim is not to contribute to the creation of a contemporary European identity, even though I am mildly sympathetic to this aim – at least in relation to creating another identity than being citizens of perpetually warring nation states. But I am also skeptical, mainly towards the idea of a topdown creation of identity. The attempts of 19th century European empires are not inviting, and even less so the 20th century Fascist ones. Besides, I doubt whether it is possible to formulate an overlapping consensus of identity-making values. Rather I tend to believe that there exists a cluster of overlapping consensuses with no core consensus. Fourthly, I regret that I am only pointing to European and US American differences, not taking the remaining parts of America into consideration. This is so, not, of course, because it is not interesting or important, but because I have less knowledge of Latin American, Caribbean and Canadian human rights conceptions. At any rate, the following is merely meant as an illustration and may even serve as inspiration for further comparisons.36 In the following I shall focus on three conspicuous divergences: 1) The role of international law in human rights protection, 2) the role of social rights in addition to civil and political rights,37 and 3) freedom of speech protection. Firstly, the approach to international law is different. The US has a strong tradition of isolationism, and even if this is not viable in the present globalized world, there is still a great US skepticism towards binding international human rights law. Thus, the US have not ratified important international human rights conventions such as the Covenant on Social, Economic and Cultural Rights and the Convention on the Rights of the Child, the US is not a signatory to the Rome Statute establishing the International Criminal Court, and even regarding the Covenant on Civil and Political Rights – arguably at the core of the US perception of human rights (see further below) – the US have made “an unprecedented number”38 of reservations, understandings and declarations and have not signed the two additional protocols allowing 36

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I have previously made a small comparison between Danish and European protection of freedom of speech, arguing that differences are more a matter of identity than of legal content. Sten Schaumburg-Müller , “Law as a Tale of Identity – and Some Perspectives on Human Rights Law”, in Karen-Margrethe Simonsen and Ditlev Tamm (eds.), Law and Literature. Interdisciplinary Methods of Reading. DJØF Publishing, Copenhagen 2010, p. 67-77. For these two, see chapters 5 and 6 on “divergent transatlantic views” in Helle Porsdam, 2009. William A. Schabas, “Invalid Reservations to the International Covenant on Civil and Political Rights. Is the US Still a Party?”, Brooklyn Journal of International Law, vol. 21, 1995, p. 277-325, p. 280.

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for individual complaints and abolishing the death penalty, respectively. European countries, on the contrary, have by far signed all UN human rights conventions and the Rome Statute, and in addition all European countries, except Belorussia, have ratified the European Convention on Human Rights, which includes the competence of the European Court of Human Rights adjudicating individual complaints against member states. Even disregarding the European project39 – the European Union as a supranational entity and European human rights – Europe is much more willing to make binding obligations towards the international community than the US. This divergence, I contend, is not only a question of right or wrong answers, but also a question of experience. The US have been quite successful in nation-based protection of rights, the US have not been torn by endless wars and have not been threatened by foreign occupation. Europe, on the contrary, has not been very successful in a purely nation-based protection of rights. Only a few countries, such as Great Britain, France, The Netherlands and the Nordic countries, have a convincing tradition for domestic protection of rights, and the domestic tradition proved worthless when all countries except Britain were overrun by Nazi Germany. Thus, an all-encompassing European human rights regime was only established with international assistance in Western Europe after the Second World War and later in most of Eastern Europe. Futhermore, Europe has been torn by endless wars – wars are perhaps the greatest menace to human rights – only to be ended by the second US interference in 1941.40 The Europeans have shown no ability to establish peace themselves, and the Europeans generally have a mediocre record of domestic human rights protection, not to mention the largely human rights suppressing regime overseas. Only with international assistance, in particular provided by the US, and with the establishment of an international legal regime was it possible to establish and maintain peace and protect human rights in Europe. 39

40

Whether the European Union should be understood as a particularly strong international cooperation or as a belated creation of a European state is an open question. I tend to conceive the peace of Westphalia and the dividing of Europe in rather small, sovereign states as a historical anomaly, only made possible by colonialism. Only because of the fact that many European states could act as empires abroad, were they able to uphold the status as small independent states vis-à-vis each other. The empire option is no longer available, and consequently it is no longer viable to uphold a system of small sovereign states, either. One could argue that the first intervention in 1917 could have been more successful, had the US (especially the Senate) not been so unwilling to engage, and had the Europeans (especially the French) not been so unwilling to accept the post-war engagement.

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Seen in this way, the European experience is simply that the national level is insufficient to protect human rights, whereas the US experience is that the national level is perfectly sufficient. No wonder that there are different ideas as to which level is the most reliable for human rights protection. Please note that I am not claiming that Europeans and US Americans are forever doomed to have these conceptions, let alone doomed to live on different planets.41 My contentions are merely that experience does play a part, that experience is framing identity as well as law, and that it is important to integrate this understanding, also when dealing with human rights and the proper way to protect those rights. Secondly, the understanding of what belongs to the set of rights differs: in the US rights are mainly civil and political rights, whereas the general European conception of rights also includes social, economic and (maybe to a lesser extent) cultural rights. The US Constitution including the amendments includes only political and civil rights, the US has never ratified the Covenant of Social, Economic and Cultural Rights, and the idea of a welfare state is much less prevalent in the US than in Europe. In contradistinction, most European countries have ratified the social rights Covenant, most European countries have some social rights in their respective constitutions, and most European countries have a legally based welfare state with social rights as legal rights.42 In addition, economic rights have been at the core of the European Union from its inception, and presently the European Charter on Fundamental Rights includes social, economic and cultural rights, besides the civil and political rights and even some solidarity rights. Also this divergence has roots in the divergent experiences of the regions. The United States have been a land of immigrants, starting afresh, free to fend for themselves, whereas Europe has been inhabited for ages with all sorts of empires and kingdoms and their hierarchies. In addition, the US Declaration of Independence of 1776 makes civil and political rights the basis of government: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted 41 42

As indicated by Robert Kagan, Of Paradise and Power: America and Europe in the New World Order. Random House, New York 2003. As an example, the Danish Constitution mentions some social and economic rights although they hardly function as legally enforceable rights. Since 1933, Denmark has had social rights through statutory legislation, and the courts are increasingly dealing with cases concerning social and economic rights.

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among men, deriving their just powers from the consent of the governed.” Rights are perceived as natural, the basic rights are civil rights (life, liberty and the pursuit of happiness), and since the government is there to secure these rights, the civil rights holders hold political rights as well: “it is the right of the people to alter or to abolish it [i.e. the government], and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” The idea of rights being civil, political and natural is part of the US American identity. There is no European counterpart. This is due to the fact that, firstly, even if we take the French 1789 Declaration as the equivalent, this is a French declaration, not a European one. Secondly, it did not last. France was soon to be an empire, and in 1815 the pre-revolutionary order was reestablished through the “concert of Europe”. Present European identity, I claim, is much more connected to the welfare state, with political philosophical roots in Hegel’ian conservatism and Bernstein’ian social democratism in contradistinction to the conspicuous roots of Locke’an liberalism in the US Declaration. I am not claiming that Americans and Europeans will forever conceive rights differently, but I do maintain that the different conceptions are connected to identity, and consequently not changeable merely by means of enlightened arguments. Thirdly, the US and the European conceptions of rights differ in relation to freedom of speech. The first amendment to the US Constitution states that “Congress shall make no law … abridging the freedom of speech”, whereas a European counterpart, Article 10 of the European Convention on Human Rights, states i.a. that the exercise of the freedom speech carries with it duties and responsibilities and may be subject to restrictions which are prescribed by law, necessary in a democratic society, and with a legitimate aim. The wording of the French 1789 Declaration was even more open: Article 11 states that freedom of speech is one of the most precious rights – so far so good – but proceeds to declare that citizens are responsible for any abuse determined by the legislature.43 This divergence at the basic level has repercussions throughout the legal system: in relation to privacy (even though the gap in relation to privacy protection may be more between continental law and Anglo-Saxon law), slander and libel, reporting from court hearings and hate speech or group derision. As for the last category, many European countries criminalize Holocaust denial and most countries criminalize certain forms of racial and 43

The Danish Constitution has a similar framing, and it has been much debated whether, in fact, there is any substantive protection under the freedom of speech clause.

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other discriminatory speech, in contradistinction to the US where the speech part is covered by constitutional protection. The European Court of Human Rights has accepted the criminalization of Holocaust denial and racial discriminatory speech with a reference to the abuse of rights clause.44 Also this divergence ought to be seen in the light of experience rather than merely in the light of logic.45 Europe has seen numerous pogroms and genocides, in particular the Holocaust with the loss of the lives of approximately 6 million Jews, not to mention Romas, homosexuals, the mentally retarded etc. Besides, such atrocities always seem to be preceded by verbal debasements. On such experience it makes sense to criminalize the denial of genocide and of gross derisions of groups, depicting the group that should be wiped out as vermin or cancer. I am not claiming that criminalizing such expressions is the only sensible reaction. After all, many European countries, including my own, do not criminalize Holocaust denial. I only claim that it makes sense to deal with the fact that atrocities have taken place in one’s own country, and it makes sense to try to prevent it from happening again. German law stating that we are no longer what we used to be is a reasonable and perhaps commendable identification marker in this situation.46 In the US, in contradistinction, there has been no Holocaust, no genocide and no pogroms. Indeed, there have been problems in relation to the indigenous population, which was violently displaced and diminished, and to race or ethnic groups, but it has not been in the form of an official policy of extermination or of ethnic cleansing. And the broader legal protection of free speech seems to work well in the market place of ideas, a concept that has not found much support in Europe.47 The fact that there have been divergent experiences suggests that the law could differ, too. I see no reason why freedom of speech should be carried by a

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Lehideax and Isorni v France September 23, 1998; Chauvy and Others v France June 29, 2000; Norwood v UK November 16, 2004 (decision). See also Schauer, Frederick, “Freedom of Expression Adjudication in Europe and the United States: a case study in comparative constitutional architecture”, in Georg Nolte (ed.), European and US Constitutionalism Cambridge University Press, Cambridge 2005, p. 49-69. p. 49f. The French criminalization of the denial of the 1915 Armenian genocide in Turkey is less laudable as it seems to be an identification marker not vis-à-vis the country’s own problematic past, but vis-à-vis Turkey: we are not Turks, and Turks are not really Europeans. Roger Errera, “Freedom of Speech in Europe”, in in Georg Nolte (ed.), European and US Constitutionalism, Cambridge University Press, Cambridge 2005, 2005, p. 47-48.

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uniform philosophy with universalistic aspirations.48 Again, I am not claiming that there is an eternal difference between freedom of speech conceptions in Europe and in the US. All I claim is that the divergence is not likely to be dealt with merely by enlightened discussion dealing with freedom of speech on a purely universal and abstract basis. Identity is involved, divergence is likely to be there and may not be a bad thing, either. In conclusion, major discrepancies are not abstract issues best fit for being discussed in abstract and detached fora, they also form part of the imagination of the respective communities and of the maintenance of the boundaries. And probably even issues such as the right to carry weapons and the death penalty form part of the imagination of the respective community. Such imaginations may be self-fuelling – once they are conceived of as boundary markers, they may be more difficult to get rid of – but they are not forever fixed. Abolition of the death penalty in Europe may serve as an example. Presently it serves as an imagination of Europe, we are the ones who do not find it appropriate for states to kill, and maybe even the missionizing aspect may be part of the imagination: we Europeans are the ones to tell others that they should not accept state authorized killings. We are not barbarians like the Americans, the Chinese (and the Russians who are not really Europeans anyway), but as the more advanced and civilized we may, of course, tell them what they ought to do. In the case of the death penalty, it is somewhat ironic, as the death penalty was not abolished until after World War II in most European countries. At any rate it shows that imaginations and boundary markers may change. Only, I contend, they will not disappear altogether.

Prospects My aim is not to undermine the universality of human rights. Rather on the contrary: if we do not take the human propensity to construct community identities into consideration, I am afraid we shall not be able to make universal human rights operational. Human beings are not only rational universals, not only abstract individuals making rational choices including promulgating ideal and universal laws. We are also non-rational concrete beings, affiliated to a group whose identity we continuously work out in comparison, competition and cooperation with other groups, i.a. by means of normative framing. 48

As an example, Seana Shiffrin, “A Thinker-Based Approach to Freedom of Speech”, Plenary lecture, 25th IVR World Congress, Abstract Book, Goethe Universität, Frankfurth am Main 2011, p. 64f.

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Besides, we all have particular backgrounds with different experiences and at least partly internalized norms, which call for cautiousness when it comes to generalizations. The rights documents such as the 1776 US Declaration of Independence and the French 1789 Declaration of the Rights of Citizen and Man are at the same time milestones in relation to the formulation and perception of rights and manifestations of a particular identity. The Americans emphasized that they were not merely English subjects, but Americans on an equal footing, including having rights, and the Creole identity of starting afresh was a part of the American identity as well as the American perception of rights. The French did not have the problem of being recognized, but inherited a tradition for conquest, then turned into a civilizing, modernizing French rights mission to as much of the world as possible. And the post-World War II European Convention on Human Rights can be perceived as strengthening rights in Europe and as an attempt of creating a European identity, an identity of friendly relations, welfare and human rights, in contradistinction to the previous national, warring, often imperialist, often suppressive and only occasionally rights promoting pre-1945 Europe. The human natural group affiliation and the ensuing generation of identity markers set a challenge for rights that claim to be universal, to be for “everyone … without distinction of any kind”, cf. 1948 Universal Declaration art. 2. If human rights law is part of a tale of identity, universality is a challenge, and if human rights are experience, the accommodation of different experiences is a similarly challenging. The answer is threefold. Firstly, by acknowledging the identity aspect, we know better than fighting windmills, we know better than trying to extinguish local differences merely for the sake of their being different. Secondly, we cope better with problems when we know them. As Freud noted, the more we suppress importunate issues, the harder they hit back. And local differences may be a problem, especially when they are claimed to be universal or superior and especially when the world becomes ever more global and intertwined. Local particularities keep popping up, even in relation to claimed universal rights. Thirdly, human beings do not only live in one group, but always in several, historically at least in two groups, the family and the society, and most often in more. Thus, we have the experience and the capacity of dealing with more than one community affiliation, dealing with more than one community identity. Thus, we may be Danes, Europeans, lawyers, human rights proponents, local community members, world citizens etc. This fact does not, of course, solve the problem. In addition to competition between groups, there will be competition as to which type of group is the most impor-

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tant. The point is only that as human beings we do have a natural capacity for coping with more than one community identity, and this capacity, I contend, is important to engage when human rights are the issue. Different identities, different oughts are not necessarily a problem, but we need to realize that universal human rights are neither European nor US American (or any other, for that matter). There may be local contributions and local variations, and we – the human rights proponents and thinkers – need more consideration as regards universal, regional, national and local aspects. In undertaking this project, I recommend an empirical multidisciplinary approach. We need knowledge of facts – in the present contribution I have examined what I conceive to be the fact of human sociality – in order better to understand and to create and improve human rights. And we should avoid philosophical impatience,49 the tendency to claim full understanding when in reality we only have a limited, particular and locally attached understanding often combined with an unwillingness to engage in the hard work of attaining a more comprehensive understanding – including the understanding of human rights.

Literature Alexy, Robert, “The Dual Nature of Law”, Global Harmony and Rule of Law, IVR 24th World Congress. Papers. Plenary Sessions, 2009, p. 257-274. Anderson, Benedict, Imagined Communities. Verso, London 2006 (first published 1983). Barth, Fredrik, “Introduction”, in Fredrik Barth (ed.), Ethnic Groups and Boundaries. The Social Organization of Culture Difference. Universitetsforlaget, Bergen 1969. Beck, Ulrich and Grande, Edgar, Das kosmopolitische Europa. Suhrkamp, Frankfurt 2004. Bull, Hedley, The Anarchical Society. A Study of Order in World Politics. Macmillan, London 1995, 2nd ed. (1st ed. 1977). de Waal, Frans, Primates and Philosophers. How Morality Evolved. Princeton University Press, Princeton NJ 2006. Errera, Roger, “Freedom of Speech in Europe”, in Georg Nolte (ed.), European and US Constitutionalism. Cambridge University Press, Cambridge 2005, p. 23- 48. Hegel, Georg Wilhelm Friedrich, Åndens Fænomenologi. Translation and notes by Claus Braat Østergaard, Gyldendal, Copenhagen 2005. 49

I have the idea of philosophical impatience from the Danish translation of Hegel’s Phänomenologie des Geistes. Georg Wilhelm Friedrich Hegel, Åndens Fænomenologi. Translation and notes by Claus Braat Østergaard, Gyldendal, Copenhagen 2005, p. xxiv.

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Heidegger, Martin, Sein und Zeit. Max Niemeyer Verlag, Tübingen 1967 (orig. 1924). Holmes, Oliver Wendell, The Common Law. Little, Brown & Company, Boston1881. Kagan, Robert, Of Paradise and Power: America and Europe in the New World Order. Random House, New York 2003. Lévi-Strauss, Claude, Les Structures élémentaires de la Parenté. Presses Universitaires de France, Paris 1949. Malnes, Raino and Midgaard, Knut, Politisk tenkning. Universitetsforlaget, Oslo 2003. Nowak, Martin A., May, Robert M. and Sigmund, K., “The Arithmetics of Mutual Help”, Scientific American, Issue 6, 1995, p. 76-81. Nussbaum, Arthur, A Concise History of the Law of Nations. Macmillan, New York 1947. Peirce, Charles Sanders, “Consequences of Four Incapacities”, in Charles Hartshorne, Paul Weiss and Arthur Burks (eds.), Collected Papers of Charles Sanders Peirce. Harvard University Press, Cambridge MA 1931-1958, vol. 5, § 311 (orig. 1893). Porsdam, Helle, From Civil to Human Rights. Dialogues on Law and Humanities in the United States and Europe. Edward Elgar Publishing, Cheltenham UK 2009. Putnam, Hilary, Reason, Truth and History. Cambridge University Press, Cambridge 1981. Savigny, Friedrich Carl von, System des heutigen römischen Rechts. Veit und comp., Berlin 1840-49. Savigny, Friedrich Carl von, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft. Mohr und Zimmer, Heidelberg 1814. Schabas, William A., “Invalid Reservations to the International Covenant on Civil and Political Rights. Is the US Still a Party?”, Brooklyn Journal of International Law, vol. 21, 1995, p. 277-325. Schauer, Frederick, “Freedom of Expression Adjudication in Europe and the United States: a case study in comparative constitutional architecture”, in Georg Nolte (ed.), European and US Constitutionalism. Cambridge University Press, Cambridge 2005, p. 49-69. Schaumburg-Müller, Sten, “In Defense of Soft Universalism. A Modest, yet Presumptuous Position”, in Antonio-Luis Martínez-Pujalte and Susana Sanz Caballero (eds), Cuadernos Constitutionales de la Cátedra Fadrique Furió Ceriol. Carlos Flores Juberías , Vol. 1 62/63 Universitat de Valéncia, 2011. p. 113-126. Schaumburg-Müller , Sten, “Law as a Tale of Identity – and Some Perspectives on Human Rights Law”, in Karen-Margrethe Simonsen and Ditlev Tamm (eds.), Law and Literature. Interdisciplinary Methods of Reading. DJØF Publishing, Copenhagen 2010, p. 67-77. Schaumburg-Müller, Sten, “Ret som fællesskab og identitet. Skitse til en retsfilosofi”, in Sten Schaumburg-Müller and Jens Vedsted-Hansen (eds.), Om ret, individ og kollektiv. DJØF Publishing, Copenhagen 2011, p. 33-56.

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Shiffrin, Seana. “A Thinker-Based Approach to Freedom of Speech”, Plenary lecture, 25th IVR World Congress, Abstract Book, Goethe Universität, Frankfurth am Main 2011 Wittgenstein, Ludwig, Philosophische Untersuchungen. Suhrkamp, Frankfurt 1977 (orig. 1953), § 242, p. 139. Wrangham, Richard, Catching Fire. How Cooking Made Us Human. Profile Books, London 2009.

Part II. Err atic frontiers of human rights Countries in Transition

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Regime Change in a Transitional Society: The Case of Ukraine Srdjan Darmanovic

Introduction Long before the so-called third wave of democratic transition, which has been the most massive upheaval in favor of democracy in modern history, it was well known that the change of the political regime in a positive direction is not necessarily the last word in the life of one polity.1 In other words, there is no guarantee of “once a democracy – always a democracy”. True, there are polities, i.e. countries, where this paraphrase today can be applied, and actually the number of said polities is not insignificant. From today’s perspective, it is difficult to imagine that, for example, the United States, or most of the EU member states, or non-European democracies such as Canada, Japan, Australia or New Zealand, would cease to function as democratic polities. A combination of free and fair electoral competition and the rule of law has over time been entrenched and transformed into the very solid amalgam of liberal democracy in these countries. An illiberal turn would be simply unlikely.

1

The “Third Wave” of democratic transition began in the Mediterranean in 1974 when the decades long authoritarian regime in Portugal was ousted by the military and the “colonel’s regime” in Greece subsequently collapsed as well. In the following year, after Franco’s death, Spain headed towards democracy. The third wave affected many countries and continents, including even then-isolated South Africa and its regime of racial oppression. Finally, the collapse of communism in Central and Eastern Europe in 1989 opened the door for multi-party elections to be held in all the countries in that region. Despite that fact, the “third wave” of democratization remains the most profound change in favor of democracy in the history of mankind. The “third wave” brought about the spectacular fact that for the first time, the number of states that can be described as democracies outnumber those that are not. On the “Third Wave” phenomena, see more in Dankwart Rustow, “Transitions to Democracy,” Comparative Politics, 2/1970; Richard Rose, William Mishler and Christian Harper, Democracy and Its Alternatives, The John Hopkins University Press, Baltimore, Maryland 1998.; and, of course, in Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman 1991.

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However, from a more historical perspective, only a small number of these countries, these champions of liberal democracy, escaped twists and turns along the way and breakdowns of the democratic order. Italian fascism of the 1920s and the German extreme example of the 1930s, the turbulent history of the French Bonapartism in 19th century or Vichy government in the 20th; the violent collapse of the Spanish Republic in the civil war and its transformation into one of the most enduring and exemplary authoritarian regimes; Portuguese “Estado Nuevo” under Salazar; suspension of democratic regimes in Austria, the Benelux and Scandinavia by the Nazi war machine; “the colonel’s regime” in Greece, a country that once was a cradle of European democracy; not to mention the very often double or multiple experiences with undemocratic regimes in Eastern Europe, firstly under the pre-war dictators like Pilsudski of Poland, Horty of Hungary, Karadjordjević of Yugoslavia, Karol of Romania, Boris of Bulgaria and so forth, then subsequently under Communist regimes after World War Two; and finally, in some of these countries under authoritarian post-communists after the fall of the Berlin Wall. If we add to these numerous examples the unusual political history of the Latin American continent, resembling the “magical realist” novels of Latin America’s best writer, Gabriel Garcia Marquez, where throughout most of the 20th century the military would interrupt a “democratic game” almost at will, causing multiple breakdowns of mainly fragile and unstable democracies, it is easy to conclude that democracy is not that difficult to bring about, but that it is far more difficult for it to become an established political order and daily routine, or to use a Linz-Stepan term, to become “the only game in town” indefinitely, and not just for a short time. This is actually the hardest part of the complicated political transformations commonly called democratic transitions. Although, through these and other examples, history has spoken for itself, and with a very strong warning voice, the third wave and its epochal result – the demise of the communist system on the European continent and the fall of the Soviet empire – created characteristic optimism, almost euphoria, probably best expressed in Fukuyama’s famous thesis on the ideological triumphing of liberalism over other non-liberal forms of organization of human society, and in fact, leading to the “end of history”. Some newly democratized countries, such as Poland, the Czech Republic, Hungary, Slovenia and the Baltic states, seemed to have confirmed Fukuyama’s historical optimism. It has been widely perceived that democratic transition and consolidation in these cases merged relatively quickly and successfully into the irreversible process. However, more recent events convincingly disproved Fukuyama’s thesis about the end of history, and even he conceded his thesis was incomplete. The wars in the former Yugoslavia and parts of the former Soviet Union are only the most extreme examples.

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What has become more common and widespread are the democratic transitions that resulted in the regimes for which it was clear that they, despite the democratic forms and names, had serious problems with principles written into their new constitutions, usually copied from Western societies (“old democracies”) and adapted to local conditions. In some of these countries (Bulgaria, Macedonia), democratic ingredients nevertheless prevailed over authoritarian. In others (Serbia/Yugoslavia under Milosevic, Croatia under Tudjman, Romania under Iliescu, Slovakia under Meciar), authoritarian patterns were quite apparent. And in some countries (Ukraine, Georgia), democracy and authoritarianism alternated periodically, with no tendency to solidify. In the countries mentioned in the second group, issues are mostly settled in favor of democracy, but now, 22 years after the fall of the Berlin wall and after practicing a pluralistic model, we are still facing unstable democracies that have problems with their formal and constitutional descriptions and where the political pendulum between democracy and authoritarianism has not yet finally rested in a stable position. In Hungary, for example, the latest illiberal tendencies demonstrate that democracy can at least partially be challenged even in the most successful former transitional countries which are members of the two privileged clubs, the European Union and NATO. One of the best examples of such a political regime is Ukraine. I have chosen to use Ukraine as an example partially due to my personal experience. Over the last few years while serving as a member of the Council of Europe’s Venice Commission, I had opportunities to repeatedly deal with the electoral legislation and electoral models of Ukraine.2 I also participated 2

The Venice Commission (official name “International Commission for Democracy through Law”) is an expert body of the Council of Europe, founded in 1990, on the initiative of the then Italian Foreign Minister, Gianni De Michelis, with the aim of helping the building of democratic institutions and consolidation of democracy based on rule of law in so-called “new democracies”, i.e., transitional societies that emerged after the fall of the Berlin Wall and the collapse of communism in Eastern Europe. De Michelis proposed his hometown to be the seat of the Commission taking into account the historical, cultural and symbolic importance of Venice, and his proposal was gladly accepted. Over time, the activities of the Commission have been expanded geographically and thematically. Nowadays the Commission’s expert opinions use not only “newly democratized” countries, but also long lasting “old democracies”. In addition to the Council of Europe member states, 10 non-European countries (Algeria, Brazil, Chile, Jordan, Mexico, Morocco, Peru, Tunisia, South Korea) were granted membership in the Venice Commission. Each country has two representatives in the Commission, one full member and a substitute. Members of the Venice Commission are usually prominent university professors (mostly in law or political science), or in some cases, judges of the constitutional courts. Once appointed, Venice Commission members do not represent their country or

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in observing missions for the presidential elections in Ukraine in January and February 2010, as well as in the parliamentary elections of October 2012. In Ukraine one can meet many different actors of the political process, so typical for postcommunist countries: members of the “new class”, “oligarchs”, so-called “transition winners” who gained enormous wealth overnight and later converted it into political influence; members of the “old guard”, some of which have been able to use their experience as members of the former communist nomenclatura to continue relatively successful political careers in a new pluralistic landscape, but nevertheless one can easily recognize most of them by the distinctive style and language; politicians-idealists, as well as engaged intellectuals, who sincerely believe that changes are possible and achievable, experiencing through this faith great expectations and even greater disappointments; politicians in power as well as those in opposition, but sharing a similar mentality and animosity among themselves that hinder any serious compromise; representatives of pro-Ukrainian and pro-Russian orientation, which is a big issue in this country because ethnic and linguistic identities are what politics are made of in Ukraine; media magnates who quickly realized that every influential media must be in one way or another connected with some of the oligarchs, but also journalists of rather small media who strongly believe that principles of professionalism will ultimately prevail over “transitional” journalism; members of a very vibrant civil society whether they were NGO-professionals or just activists; employees of the state and electoral administration, some of them very much embodying an older time, while others might be exemplary officers of any modern and well-organized Western bureaucracy. This exciting range of events, personalities and social processes create a most colorful social picture, so typical for those countries where no definite and stable political system has yet been established, but where everything is still possible and events can still take any turn. But before we start discussing the Ukrainian case, it is useful to make some conceptual remarks and clarifications.

Non-democratic Regimes and Models of Transition There are many classifications and typologies of contemporary non-democratic regimes. A current classic typology was developed by Juan Linz and government, but only their expert knowledge and are also obliged by the rule that “no one can be a judge in his one thing,” meaning that each member of the Commission may not be the author of the Commission’s opinion when it comes to his/her country.

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Alfred Stepan in their famous book On Democratic Transitions and Consolidation.3 They extensively used it to explain how transitions of the “third wave” emerged and how their outcomes were connected with the regimes they abandoned. This typology is based on four types of non-democratic regimes, two of which are “genuine” or “generic”, while the two others are “derivative”, i.e. emerging as a by-product of one of the two from the first group. Following their typology, four basic types of the non-democratic regimes are: authoritarianism, totalitarianism, post-totalitarianism and sultanism. The distinction between totalitarian and post-totalitarian regimes are important for understanding the first transition in the Soviet Union, and subsequently in Ukraine as one of the states that emerged after the dissolution of the Soviet federation. However, in order to understand the second Ukrainian transition, i.e. exit from Kuchma’s regime, the victory of the “Orange Revolution”, and its subsequent collapse and loss of power of the so-called Orange Coalition, we need to look at more recent insights into the nature of modern non-democratic regimes. Linz and Stepan spoke of the undemocratic regimes that preceded the “third wave” of democratic transition. Before the “third wave”, communist totalitarianism of the Soviet type or its somewhat more benevolent forms, as well as various types of classic authoritarianism, civilian or military ones, claimed to be a legitimate alternative to democracy. Communist regimes brought up the alternative by their distinct ideological project, while authoritarian regimes were most often steeped in the historical scene as a functional alternative to democracy, sometimes in the form of developmental dictatorships acting on behalf of rapid modernization, or on other occasions as regimes of “national security” combating left-wing threats to an existing order. After the collapse of the communist system in 1989 and the defeat of the military regimes in Latin America, democracy as a concept had not been seriously challenged by any other ideological alternative. Few regimes in the world today, including those which are clearly non-democratic or predominantly authoritarian, want to present themselves as a negation or alternative to democracy, but on the contrary, attempt to cloak themselves with a democratic mantle as much as possible. In the constitutions of these countries one can find not only statements but many of the institutions which one way or another have been taken from democracies. Aside from some traditional oneparty or non-party systems today, we usually face regimes in which transition did not bring a democratic outcome and the resulting systems cannot be 3

Huan Linc and Alfred Stepan, Demokratska tranzicija i konsolidacija, Filip Višnjić, Beograd 1998.

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called democratic, yet, at the same time, they differ from their classic authoritarian predecessors. This brings us to the hybrid regimes that are often amalgams of authoritarian and democratic forms of government, combinations of a very limited democracy and somewhat limited authoritarianism. In other words, these regimes are neither wholly democratic nor authoritarian, yet at the same time are somewhat democratic and very authoritarian. The dual character of this type of regime is, as has been already mentioned, a result of a lack of serious ideological alternative to democracy in today’s world as well as the fact that in the international context of the late 20th and early 21th century, establishment of open dictatorships or rejection of a pluralistic system is highly unfavorable. Hence, one of the two faces of these regimes is the formal democratic one (in reality, mostly a democratic facade regime), while the other is essentially authoritarian, because most of the essential features of monopolistic power are retained and only covered with the façade of a pluralistic system. Hybrid regimes remind us of the fact that democratic transition is not an irreversible process guaranteeing a positive outcome. Linz and Stepan’s warning that “transition can begin and never finish, although a new authoritarian regime has not been established” is still very much alive.4 In this context, they stressed the risk of “electoralistic illusion” or “electoralistic non-transition”, i.e. a political regime that has established a competitive multiparty system, but also reduced democracy to this single element, thereby finding effective ways to impose restrictions of many rights and freedoms of individuals and groups.5 Having in mind some Latin-American countries, O’Donnell and Schmitter named similar types of regimes democraduras (“restricted democracies”).6 Schmitter explained the use of this term in a very clear way: “There where they liberalize, but without democratization (i.e. where certain individual rights are recognized, but those who rule are not accountable and responsible to the citizens) hybrid regime has been called dictablanda. For the cases where they democratize, but without liberalization (i.e. where elections are regularly held, but only to guarantee the victory of the ruling party, where some socio-political groups are excluded from the electoral competi-

4 5 6

Linc and Stepan, 1998, p. 16. Linc and Stepan, 1998, p. 17. Guillermo O’Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule – Tentative Conclusions about Uncertain Democracies, Woodrow Wilson International Center for Scholars, Washington, D.C. 1986, p. 9.

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tion or where certain groups prevent those elected by the citizens to effectively run the country) we propose a neologism called democradura.”7 Many authors and other observers, having studied the hybrid regimes, came to the conclusion that these regimes need not be merely by-products of the democratic transition, as a short-lived phase, but, on the contrary, many of them show a strong tendency to persist and endure, i.e. to “never complete the process of democratic transition.” The term semi-authoritarian regimes has often been used for these hybrid formations. In her very important study,8 Marina Ottaway, describing the very character of this type of regime, stresses that its “ambiguous character... is deliberate” and that here we don’t face “... imperfect democracies struggling toward improvement and consolidation, but regimes determined to maintain the appearance of democracy without exposing themselves to the political risks that free competition entails”.9 Recently, thanks particularly to the studies of Schedler and Levitsky and Way, another label has been created for these regimes – competitive authoritarianism.10 They also characterize regimes named by this term as a hybrid type comprising distinguishing features of both democracy and authoritarianism.11 By not challenging Dahl’s “procedural minimum” of democracy that comprises 1) free, fair and competitive elections; 2) full adult suffrage; 3) broad protection of civil liberties, including freedom of speech, press and association; and 4) the absence of non-elected “tutelary” authorities (e.g. militaries, monarchies, religious bodies) that limit elected officials’ power to govern,12 Levitsky and Way especially emphasize and give the utmost importance to conditions under which elections are held, meaning “the existence of a reasonably level playing field between incumbents and opposition”.13 Thus, they define competitive authoritarian regimes as “…civilian regimes in which formal democratic institutions exist and are 7 8 9 10

11 12 13

Philippe C. Schmitter, “Dangers and Dilemmas of Democracy,” Journal of Democracy, April 1994, p. 59-60. Marina Ottaway, Democracy Challenged: The Rise of Semi-Authoritarianism, Carnegie Endowment for International Peace, Washington D.C. 2003. Ottaway, 2003, p. 3. Andreas Schedler (ed.), Electoral Authoritarianism: The Dynamics of Unfree Competition, Lynne Reiner Publishers, Boulder, Colorado, 2006; Steven Levitsky and Lucan Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War, Cambridge University Press, New York 2010. Lewitsky and Way, 2010, p. 5. Robert Dahl, Polyarchy: Participation and Opposition, New Haven, CT, Yale University Press, 1971. Levitsky and Way, 2010, p. 6.

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widely viewed as the primary means of gaining power, but in which incumbents’ abuse of the state places them at a significant advantage vis-à-vis their opponents. Such regimes are competitive in that opposition parties use democratic institution to contest seriously for power, but they are not democratic because the playing field is heavily skewed in favor of incumbents. Competition is thus real but unfair.”14 According to Levitsky and Way’s criteria, in the period 1990 to 1995, some 35 countries across the globe could have been put on the list of nations where the political regime was competitive authoritarian. Ukraine was one of them.15 Transition from one regime to another is, in many ways, a formative and defining period. The model of change chosen during this period, if one can choose at all, or the way in which the main political and social actors are forced to act if they are convinced they have no other choice, largely determines the future political events and the development of a society. This way of doing transitional business, the way in which actors operate, is called a model of transition. Two main and distinctive approaches to this topic can be found in the literature on regime change. One of them very much emphasizes structural reasons, i.e. the socio-economic and cultural base which is necessary to ensure the democratization process begins and ends successfully. This approach particularly pays attention to long lasting macro-processes, happening relatively independent of human will, intentions and actions. These macro-processes, socio-economic and cultural structures, influence decisively the formation, strength, and survival of political regimes and their institutions. The other approach views political regimes and their changes primarily as a result of strategic choices. It insists on the decisive role of mutual relations and interactions of principal political and social actors and of choices they make, their conflicts, negotiations, pacts and other strategic moves they undertake in this process. Political regimes, their creation or falls, are explained as a result of human decisions. This approach emphasizes the models of transition. The structural approach dominated in the 1950s and 1960s. The most influential representative of this school of thought was Seymour Martin Lipset. He identified certain social assumptions and conditions as necessary for the stability and longevity of democratic regimes. The logical conclusion of his approach was that some democratic regimes in Europe during the 1920s and 1930s collapsed and were replaced by various forms of authoritarianism and 14 15

Levitsky and Way, 2010, p. 5. Levitsky and Way, 2010, p. 4.

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totalitarianism primarily because of the backwardness of their socio-economic structures.16 Later, Samuel Huntington elaborated on a similar concept placing emphasis on the development and modernization. This concept was based on the level of industrialization and urbanization of a particular country as being an important general framework of the democratization process. Huntington’s approach indicated that poverty in many countries ultimately brings undemocratic regimes to power.17 Gabriel Almond and Sidney Verba added ingredients of political culture and tradition to the structural approach, understanding it as a kind of factor-mediator between basic socioeconomic structures and human actions. They noted that attitudes emanating from a certain level and type of political culture can, in the form of civic participation and activities, bring stabilization of the democratic order, or vice versa, in the form of passivity, apathy and obedience it can contribute to the establishment or strengthening of non-democratic regimes.18 As is usually the case in theory, the structural approach triggered many reviews and much criticism. Among other things, it had been said that the way the structural approach identifies “causes” and “conditions” that decisively affect survival or decline of democracies reminds one of a pre-modern concept of causality. Examples were used to prove that there is no required or even sufficient structural condition to establish and consolidate democratic regimes. One of the most famous examples was India which remained a relatively stable democracy despite poverty and a low literacy rate. Conversely, several countries with high literacy rates and relatively high income per capita in Western Europe in the 1930s, and later in Latin America, suffered a severe involution and fell under the rule of non-democratic regimes, some of which were the worst in the history of humanity.19 The emphasis on socio-economic conditions for the establishment and durability of democratic regimes has proved to be particularly scarce in coun16

17 18

19

Seymour Martin Lipset, “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” American Political Science Review, No. 53, 1959, p. 69105; Seymour Martin Lipset, Political Man: The Social Bases of Politics, Doubleday, New York 1960. Samuel Huntington, Political Order in Changing Societies, Yale University Press, New Haven 1968. Gabriel Almond and Sidney Verba, The Civic Culture, Princeton University Press, Princeton 1963; Gabriel Almond and Sidney Verba, The Civic Culture Revisited, Sage, London 1989. For this kind of argumentation, see Dunkwart Rustow, “Transition to Democracy: Toward a Dynamic Model”, Comparative Politics, 2/1970; Brian Barry, Sociologists, Economists and Democracy, Macmillan, London 1970.

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tries where communist regimes ruled for decades. According to the structural approach, in societies based on state ownership, state control over all economy politics, as well as the lack of civic and liberal culture, it would have been difficult to expect effective social and political mobilization in order to achieve regime change and subsequently radically transform it. Perhaps this was the reason why Adam Przeworski, speaking of the structural approach, concluded not without certain sharpness and irony that “... an inductive method characteristic to this approach is to attach known consequences, for example democracy or fascism, to the initial conditions, such as agrarian class structure. When things are formulated this way, consequences are invariably determined by the conditions, and history is happening without anyone to do anything.”20 Contrary to the theory of structurally determined factors, a different approach giving emphasis to the strategic aspects of the transition process, i.e. the previously mentioned strategic choices made by the main actors, had been developed in the literature on regime change in the 1970s and 1980s. Juan Linz in his study on the collapse of European democracies between the wars was the first one who separated the regimes’ ability to obtain legitimacy, i.e. acceptance by most social and political actors, from its effectiveness. Among other things, Linz presented the fact that there was no link between unemployment and democratic (in)stability in several countries in the interwar period, and that the breakdown of democracy in Germany and Spain during the 1930s depended primarily on political factors, such as a new type of political leadership, strength of the organization, ideology and given institutional framework.21 The “third wave” of democratization gave momentum to the strategic approach. It contributed to the concept developed by authors of this approach that the relationship between economic conditions and political form was uncertain and far from being deterministic. These authors increasingly emphasized a high degree of political autonomy in relation to structural factors and insisted on the uncertainty as an essential characteristic of the process of regime changes. Regime changes have been explained more and more as being a consequence of a series of strategic choices and decisions, made by actors with differing beliefs, attitudes and aspirations.

20 21

Adam Przeworski, Democracy and the Market, Cambridge University Press, Cambridge 1991. See more: Juan J. Linz and Alfred Stepan (eds.), The Breakdown of Democratic Regimes, John Hopkins University Press, Baltimore 1978.

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The collapse of communist regimes in Eastern Europe in the late 1980s and early 1990s opened a new chapter. As mentioned earlier, in the Soviet totalitarian system and subsequent post-totalitarian regimes it was difficult, if not impossible, to find alleged structural predispositions for democratization. It turned out that the general consensus in the cold-war political theory – the assumption that communist parties in totalitarian and post-totalitarian societies were incapable of initiating self-reformation that would instigate reformation of their societies – was simply wrong. The impetus for the way out of Soviet-type society came from the very center of the system. A secretary general of the Soviet Communist Party and the group of party reformers that followed opened the door for changes that will be remembered as one of the cornerstones of modern history. There is no doubt that many of the “structural” reasons contributed to the weakening of the Soviet system, but the Gorbachev-factor, by all its features, achievements and weaknesses, was decisive. The importance of the role of leadership and actions that were or were not undertaken by the key actors would have been demonstrated during the transition process in other East European countries ruled by communists. It is, for example, very difficult to explain by the structural model why Yugoslavia, a country where the communist system was much more “liberal” and its economy much more developed than the communist countries of Eastern Europe, fell apart in bloody wars in the 1990s and furthermore, in its successor-largest countries (Serbia and Croatia) some of the worst post-communist regimes were created, while at the same time most of the former Warsaw Pact countries and even most successor-states of the European part of former Soviet Union had a less traumatic and more successful transition. It makes little difference that the outcomes of the transition of many post-Soviet countries did not belong to the most successful ones and were very different from country to country, but still, they did not experience a bloodbath such as happened in the process of the break-up of Yugoslavia. Moreover, it is equally difficult to explain by the structural model why individual republics of Yugoslavia during the time of its disintegration experienced different transition processes followed by different outcomes; for example, why the main instigators and actors of the war and the disintegration of Yugoslavia became Serbia and Croatia – its two largest and most developed republics. Or why these two republics, although the biggest and most developed and throughout history having some kind of democratic culture and tradition, fell under an almost decade-long rule of authoritarian regimes, while Macedonia, for example, lacking almost everything mentioned about the aforementioned two republics, did not. A similar paradox can be cited

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for small, underdeveloped and war-culture prone Montenegro that inside the rump-Yugoslavia (Serbia-Montenegro) was one of the most crucial opponents to the Milosevic regime. An unavoidable question is how one might at all explain by structural reasons why the Russian transitional elite under Yeltsin that even had nuclear weapons at its disposal, had not opted for the disastrous approach “all Russians in one country”, but instead advocated an anti-imperial argument “whoever wants to leave the Soviet Union can do that without consequences”, while at the same time the Serbian political and cultural elite embraced sharply different 19th century pan-Serbian ideology and politics that caused Balkan calamities in the 1990s and ultimately led Serbia to the war against NATO. The crucial role of the decisions and choices of the political leadership and cultural elite is more than clear. Similar to typologizing non-democratic regimes that existed before the “third wave” of democratic transitions, Linz and Stepan identified basic transition models during the “third wave”. These models were the following: a) transaction model; b) model of negotiations; and c) model of collapse of nondemocratic regime. The transaction model has been described with different phrases, like “democratization without the democrats”, “transition initiated from within”, “transition initiated by the regime”, “peaceful transformation of the regime”, “negotiated reform” and so forth.22 The main feature of the transaction model is a political action undertaken by regime reformers in order to persuade their hard-line colleagues inside the regime’s ruling party and government institutions to embrace some limited reforms. Using a carrot-and-stick approach, regime reformers and moderates have in a way threatened the hard-liners that they would have no choice but to go even further and start advocating a more radical strategy – democratic breakdown with the regime. To give more muscle to their strategy, reformers could demonstrate or just simulate their readiness to enter into negotiations with opposition groups, putting more pressure on the hard-liners. In cases where they have been able to maintain control over the transition process, the transaction model has served the regime reformers well, enabling them to create favorable rules of the game for themselves in the first phase of the transition process. Linz and Stepan con22

These phrases can be found in: Scott Mainwaring and Donald Share, “Democratization through Transaction: Democratization in Brazil and Spain,” p. 175-215 in Wayne Selcher (ed.), Political Liberalization in Brazil, Westview Press, Boulder, Colorado, Westview Press, 1986; Larry Diamond and Marc F. Plattner (eds.), The Global Resurgence of Democracy, John Hopkins University Press, Baltimore 1996; Huntington, 1991; Linc and Stepan, 1998.

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sidered post-Franco Spain as an exemplary case of the successful transaction model, while on the contrary, pointed out the long lasting Brazilian transition (1974-1992) and Gorbachev’s perestroika in the Soviet Union as the most complicated among transaction model cases. For our topic it is worth mentioning that Gorbachev’s perestroika that gave strong initial momentum to the many among Soviet constituent republics, and Yeltsin’s subsequent actions that de facto dismantled the Soviet Union, would have been decisive for the first phase of Ukrainian transition in the beginning of the 1990s.

The First Transition – Independence and Hybrid Regime The first Ukrainian transition emerged in the context of the Soviet post-totalitarian regime. Although quite clear signals indicated a long-lasting crisis of the Soviet system,23 there were no signs or credible threats that reflected the regime might have been in jeopardy from any articulated or well-organized opposition. A poorly organized dissident movement and samizdat literature embodied maximum efforts in rejection of the Soviet regime, but actually without success. That is why the Soviet Union is a classic example, more than any other, of the transition initiated by the regime, and in this case one could speak specifically of transition initiated by the regime’s leader. Coincidences played a huge role in this matter. Two secretaries general of the Communist Party of the Soviet Union (CPSU), Andropov and Chernenko, died in just three years. That course of events opened the door for Gorbachev to come into power in the Soviet Union, but he was elected as a new secretary general of the Party by only one vote ahead of his opponent!24 There was very little 23

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Circles critical to the economic performance of the Soviet Union named the Brezhnev years that preceded the arrival of Gorbachev to power by the Russian word “zastoi” (delay). Even the official Soviet statistics have not been able to hide the declining trends. In addition to the importance of strategic choices by the main actors, we have to mention this rather bizarre detail that reveals the role of accident in history. Gorbachev was elected to the position of Secretary General of the CPSU in 1984, following the death of his predecessor, the aging and ailing Konstantin Chernenko. Witnesses of the events later claimed that at the meeting of the Politburo that gathered to vote for the new Secretary General, Gorbachev defeated his rival Grishin, then the party secretary of Moscow, only by one vote – 5:4! Whether historians, researchers, students and others had enough food for thought to mark 1989 as a year of historical turnover or to conclude that the collapse of communism was inevitable had the result been different remains anybody’s guess. Indeed, many other historical situations alike, something that one might call the “accident”, played an immeasurable role.

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predictability and regularity in this whole process. Events unfolded surprisingly. Gorbachev’s perestroika was embraced in Ukraine with enthusiasm. It launched the big stage for political forces that understood perestroika as a chance to change the former system, or at least to implement serious reforms in it. A fairly wide political movement in support of perestroika named Ruch was created. This movement added one important ingredient to Ukrainian politics – it insisted on the Ukrainian identity and independence. Ruch was not the only actor moving in this direction. Several smaller parties that sought the independence of the country also emerged, and this idea was no longer alien to Ukrainian Communist nomenclature. This tendency, that branches of the ruling communist parties in the constituent republics of communist federations adopt a “national” ideology, become “national” parties, and even lead the movements in favor of national independence, became a trend after the fall of the Berlin Wall. Therefore, it was no surprise that the first President of independent Ukraine was Leonid Kravchuk, former head of the ideology department in the Ukrainian Communist Party and its Politburo member. Being elected President of the Ukrainian Parliament (Verhovna Rada) in Gorbachev’s era, he emerged as the most powerful politician in the country. In the first Ukrainian presidential election in December 1991, he won over the Ruch leader Vyacheslav Chornovil almost effortlessly, with an impressive majority of 61.6 pct. In fact, although the pro-independence communist nomenclatura, the popular movement Ruch, and other internal actors played an important role in the first phase of the first Ukrainian transition 1989-1991, crucial changes, i.e. abolishing of the one-party system and gaining independence of the country, were actually part of a wider context and outcome that occurred in Moscow, the center of the Soviet system. Gorbachev’s perestroika gradually evolved to a kind of transaction model of transition in Soviet Union. After he launched perestroika, almost from its very onset, Gorbachev took the center position in the political spectrum. This position reflected the strategic orientation of moderate regime reformers – the liberalization of the regime, but without its rejection. Although he tried to follow the centrist orientation, it was clear that radical reformers were closer to him than the party hardliners. What united the moderate and radical reformists was the idea of change. What separated them was perception of speed, range of reforms, and tactics to be used towards the common enemy – the regime hardliners. Gorbachev decided to apply the strategy typical for “liberalizers” – to go for gradual changes and concessions to both surrounding groups in the political spectrum. In the first period of his centrist strategy (1988-90), Gorbachev achieved

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some breakthroughs in the liberalization and democratization of the system. In March of 1989, for the first time after the October revolution, semi-free direct elections for a new body, the Congress of People’s Deputies, occurred in the USSR. However, candidates were non-partisan because the party pluralism formally had not yet been allowed. It was a significant achievement.25 Many independent candidates were able to defeat the unpopular party apparatchiks. This subsequently resulted in the formation of various independent groups in Congress, of which the most famous was the “Interregional group” headed by Yuriy Afanasyev. This group was a mix of radical regime reformers and democratic opposition. In January 1990, the Congress of “The Democratic Russia” block led by Boris Yeltsin was created, and subsequently played a key role in the democratization process. A month later, in February 1990, at the plenary session of the Central Committee of CPSU, Gorbachev verbally forced the delegates to vote for the abolition of Article 6 of the Soviet Constitution that guaranteed the party monopoly in power. This action was no less dramatic than the famous negotiations of Spanish prime minister Adolfo Suarez to persuade Franco’s hardliners to vote for the first free election in Spain after nearly four decades. On the other side, Gorbachev made concessions to hardliners. He undertook some repressive actions against nationalist movements in the Baltics and Caucasus; at an opportune moment he withdrew his support for the government’s economic reform plan “500 days”; he appointed Gennady Yenayev, one of the notorious hardliners, as vice-president of the USSR, as was the case with some other top positions, such as appointing Vladimir Kryuchkov Head of the KGB. Always balancing the two groups, Gorbachev increasingly concentrated his own power, probably thinking that this would be the best way to boost his moderate reformist strategy. Firstly, in October of 1988 he added to his existing function of Secretary General of the party a position of Chairman of the Supreme Soviet which in the Soviet institutional scheme actually meant that he became head of state. Subsequently, in March of 1990 he introduced for the first time in history the position of President of the Soviet Union. Still having enough support and popularity he managed to get members of the Congress of People’s Deputies to elect him to this new office. .

25

Elections were semi-free because the ruling CPSU had been in advance granted onethird of the seats and veto power in the legislative process, not only in the Congress of People’s Deputies, but in the legislative body it subsequently elected, the Supreme Soviet.

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As one author stated: “This policy of ‘balance’ served Gorbachev well – until it turned out it destroyed him. He balanced by distancing himself of all groups and tendencies, playing one against the other, trying to persuade all of them that he stands in the middle. Finally, he found himself isolated when events, but also his protégées turned against him.”26 Radical regime reformers turned against Gorbachev frustrated and disappointed by his policy of “balance.” Boris Yeltsin formally left the party and despite Gorbachev’s opposition, ran for and won the office of President of Russia in the popular election. Other moderate reformers from Gorbachev’s camp, such as Foreign Minister Eduard Shevarnadze, resigned announcing they could no longer participate in the policy of “balance.” On the other side, regime hardliners lost all hope that Gorbachev could provide continuity of the system and from that moment on actually waited for an opportunity to counterstrike. It turned out that the transaction model of the first transition in the Soviet Union (1987-1991) based on liberalization and democratization through the policy of “balance” could not have resulted in a compromise ending. Our assumption is that this model may have functioned similarly to the Spanish case, assuring changes and at the same time providing some degree of personal continuity of the regime, had the Soviet transition not been overburdened by the issue of statehood. Gorbachev’s strategy collapse followed in this very field. That field had been much more difficult and explosive in the Soviet Union than in Spain. Linz and Stepan believe that the root of these very difficult problems lay not only in the Soviet imperial heritage, but in the specific form of Soviet type federalism that from the onset had actually been territorial ethno-federalism.27 This type of federalism is rooted in history, ideology and power of the party state and is characterized by a high degree of dualism in which the government of the constituent republic creates “protostates”. It is characterized by the creation of federal units based on ethnicity or ethnic majority in a certain territory. These ethnic majorities then gain the status of “titular nation”. This type of federalism coupled with an undemocratic system carries a latent threat of dissolution, because elites of the “titu-

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Theodore Draper, “Who Killed Soviet Communism?”, The New York Review of Books, June 1992, p. 14. Most of the non-Russian nations and republics were attached to the USSR with some degree of coercion. The Baltic republics, independent states in the period 1918-1940, were annexed by the provisions of the Molotov-Ribbentrop Pact. Ukraine, Georgia, Armenia and Azerbaijan after the First World War experienced periods of independence from one to four years and were attached to the Soviet Union only after the October Revolution.

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lar nations” might mobilize political support on the platform of creating their own independent state. It was the issue of preservation of the Soviet federation in its traditional form (which was the position of hardliners) or its reorganization as a kind of federal-confederal mixture, EU-like (the model proposed by Gorbachev), where the first transition met a violent finale. Instead of negotiating the best possible solution, the transition ended in a coup attempt. Actually, the statehood issue radicalized the positions of all stakeholders. The only way hardliners could radicalize their approach of the regime’s continuity was to try to impose it by force.28 With regard to the radical regime reformers and the democratic opposition – who under threat of hardliners found themselves united – radicalization of their position could only have been through rejection of the previous system and democratic breakthrough, which they have done.29 Gorbachev was left with no options. He could not, nor did he want 28

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While Gorbachev was on vacation in Crimea, a kind of junta, called The State Committee of Emergency, was formed. It comprised most of the prominent hardliners: Gennady Yanayev (Vice-President of the Soviet Union), Anatoly Lukyanov (President of the Supreme Soviet), Valentin Pavlov (Prime Minister), Vladimir Kryuchkov (Head of the KGB-a), General Dimitri Yazov (Defense Minister), Boris Pugo (Interior Minister), Oleg Baklanov (Head of the military industry), Valerii Boldin (Gorbachev’s Chief of Staff). On August 18, 1991, this group declared a state of emergency in the country, in order to prevent the conversion of the Soviet Union into a loose union of a confederal type. Some of the Soviet republics (the Baltic republics, Georgia, Moldova) immediately refused to join the coup. Conspirators sent about 50,000 troops to the streets of Moscow, put KGB units on alert and sent a delegation to Crimea to impose an ultimatum on Gorbachev - to join the coup or resign. Gorbachev bluntly rejected the ultimatum. According to the testimony of one of the conspirators, Baklanov, he kicked them out of his Crimea residence. The conspirators then decided to announce to the public Gorbachev’s illness and to continue with their plans. It is instructive to note that a review of the position of the conspirators very much reflected a pattern of Gorbachev’s rule in the last years of his presidency. Gorbachev applied “policy balance” in a way to put more and more hardliners in the most important positions, with the hope that they would not seriously threaten his power and way of bringing reform compared to energetic and active radical reformers. In the early hours of the coup there was no mass resistance, no demonstrations, strikes or anything similar. Leaders of the constituent republics outside Moscow showed no signs of a counter-reaction. Suddenly, the initiative had been taken over by Russian President Boris Yeltsin. In the morning of August 19 he called on the Russian Parliament for permanent session and transformed the Parliament building in a symbolic barricade against the coup. His speech on a tank outside the Russian Parliament (“White House”) is one of the images that remains in memory. President Yeltsin and the speaker of the Russian Parliament Ruslan Khasbulatov condemned the coup as “reactionary

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to, support the hardline coup, and afterwards radical reformers no longer needed him. They won their own battle against the hardliners in the streets of Moscow. The hypothesis that stalling the transition process in the liberalization phase without decisive steps towards democratization cannot work for very long and be successful, was bluntly confirmed in Gorbachev’s case. Liberalization without democratization is possible only as a transitional phase, but not as favorable end option. The collapse of the coup marked the end of the first phase of the first transition and also the disappearance of the Soviet Union. Ukraine gained its independence through an agreement favored by the winner in a political showdown in Moscow, Boris Yeltsin. In this case, the importance of political actors and the strategies they chose in the transition is easily recognizable. For example, if one compares the cases of ex-Yugoslavia and the former Soviet Union both countries that in post-communist transition faced the problem of statehood and ethnocratic government structure in the most difficult way, we believe that the difference in the quality of the ruling elite and its political orientation in the central, most important and powerful states of two communist federations, Russia and Serbia, was decisive for the peaceful resolution in the Soviet Union and the collapse of Yugoslavia by war. How else would one explain the paradox that Russia with more than 30 million Russians living outside its borders and with the possession of nuclear weapons, was the initiator of the peaceful dissolution of the Soviet Empire while Serbia under Milosevic’s regime was the initiator of the war drama in the former Yugoslavia? We think that the difference existed not only between the leaders of the Soviet Union/Russia (Gorbachev/Yeltsin) and Serbia (Milosevic), but also between the broader political and cultural elites of the two countries. Simply put, in the late 1980s the trend of the preservation of the empire at any cost, or “gathering of all the Russians in one country”, was not a dominant trend among the Russian ruling elite, while it was among the Serbian ruling and unconstitutional”, while the Vice-President of Russia, Colonel Alexander Rutskoi, the hero of the Afghan war, appealed to the armed forces to not cause bloodshed. The Moscow Mayor Gavriil Popov, and former Foreign Minister Eduard Shevarnadze also joined Yeltsin. As one can see, all leaders that resisted the coup were members of the group that we have designated as “radical regime reformers.” Tens of thousands of protesters responded to the anti-coup campaign by the next day, August 20. Faced with such a strong resistance, ranks of the conspirators began to fall apart. Additionally, military units that were ordered by conspirators to undertake an attack on the parliament building refused to act. The next day, August 21, the conspirators surrendered. It was obvious that they underestimated the strength of radical reformers and their appeal to the public not to allow a return to an undemocratic regime.

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political and cultural elite.30 One of the beneficiaries of such an outcome in the former Soviet Union was Ukraine, first and foremost because it obtained independence in a peaceful way. But achieving independence does not necessarily speak to what kind of regime will be established in the country. In this sense, the Ukrainian transition was just beginning when on August 24, 1991 Leonid Kravchuk declared independence of the country. Although Kravchuk’s presidency (1991-1994) and Kuchma’s regime (19942004) were quite different, for theoretical purposes they can be considered as one period, the period of the first transition which did not result in a democratic outcome in Ukraine. In both cases, it is a hybrid mode, with a significant difference being that Kravchuk’s regime featured poorly institutionalized pluralism in which neither democratic nor authoritarian tendencies had the strength for a decisive upper hand. For that reason, one Ukrainian author, following the theoretical trace of Lucan Way in the case of Moldova, rightly called this period “pluralism by default”. We could also say that it was pluralism by automatism. In other words, political competition existed and was not in jeopardy – not because the political elite or the state leadership had a clear democratic direction or because other democratically oriented social actors were particularly strong, but primarily because the institutions of government were too fragmented and other state institutions too weak to impose authoritarian rule. Such a fragmented and weakly institutionalized system would not be able to provide a necessary move forward from a democratic transition to democratic consolidation. On the contrary, the unstable hybrid regime under Kravchuk would be subsequently stabilized in the form of semi-authoritarianism under Kuchma (if we follow the terminology of M. Ottaway), or competitive authoritarianism (if we subscribe to the terms of Levitsky and Way). High levels of fragmentation of executive power under Kravchuk coincide with the rise of a new caste called “transition winners” who became known as oligarchs throughout the former Soviet Union, especially in Russia and Ukraine. Whether they were former communists, or newcomers who realized they had the chance of their lives, these individuals took advantage of the 30

Beginning with the famous Memorandum SANU 1986, a dominant part of the Serbian political and cultural elite (in Serbia, and especially in the “diaspora” – Bosnia and Croatia) had been focused on national and territorial reunification arising from the end of World War II. In Serbia, even back from the mid-19th century, there has always existed a counter-elite to the predominant populist and nationalist trends. This so-called liberal Serbia had also been vocal in the early 1990s, but was undersized and powerless to prevent a disaster.

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transitional and unregulated economic system and focused on the former state-owned companies (“socialist giants”), particularly in the energy sector, buying at extremely low prices and getting rich overnight. They became wealthy to the extent highly successful Western businessmen only dream of. This kind of “primary accumulation of capital” created a class that would soon transfer economic strength into political power or influence. It is hard to tell which were the causes and which were the consequences: whether the weak state and fragmented executive power enabled the rise of the oligarchs, or whether the rise of the oligarchs was the reason for the weakness of the state. These two processes most likely went hand in hand, complementing each other and being each other’s cause and consequence. The rise of both the oligarchs and state weakness is the classic syndrome of incomplete transition in Ukraine, bearing in mind the famous Linz-Stepan definition: “Democratic transition is complete when sufficient agreement is reached about political procedures for reaching a freely elected government, when the government comes to power directly after the free and fair election, when such a government has de facto power to create a new policy and when the executive, legislative and judicial authority created by the new democracy does not have de jure to share power with other bodies.”31 (my emphasis). Under Kravchuk’s presidency, Ukraine “achieved sufficient political consensus on political procedures for reaching a freely elected government,” i.e. the one-party system was abolished, and competitive pluralistic elections were held;32 the new government had “de facto power to create a new policy”, i.e. policy that was no longer based on the Soviet state model as Ukraine became an independent country, nor on a Soviet ideological model since that model became history after the fall of the Berlin Wall.33 But “the government cre31 32

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Linc and Stepan, 1998, p. 15. It should be added that, although competitive, elections were not able to contribute to the stability of political parties, a key factor of pluralist competition. The parties, as well as in Yeltsin’s Russia, emerged and disappeared from election to election, and served mainly for the interests of powerful and influential individuals. These were most often the oligarchs who used parties as a way to protect and strengthen their private business. Although communism and Marxism became the past in the former USSR, including Ukraine, the first transition period was marked by substantial confusion in the system of values, typical for the political transitions not only in the former communist countries. Politicians and citizens, sometimes supported opposite values and attitudes that were a combination of newly adopted democratic rhetoric and existing authoritarian impulses and ways of thinking. Homo Sovieticus and free citizen (citoeyene) went along hand in hand.

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ated by the new democracy” had to share de facto, and in a sense de jure also, power with other bodies, e.g. the class of oligarchs, who were often stronger and more influential than the formal institutions of the state. Oligarchs were not a united group, but powerful individuals often conflicting with one another, or divided into clans, which clashed with each other. As a result, they were fragmented almost in the same way as the state institutions, which resulted in a balance of weakness. This kind of a stalemate-like balance created a void which one of the representatives of state, Leonid Kuchma, Prime Minister under Kravchuk, would fill by decisively swinging the pendulum in favor of authoritarian rule. Kuchma’s 10-year rule is a typical example of hybrid regimes, the regime of dual character that is neither a dictatorship nor is moving towards a democratic order. One side of its character contains democratic elements – with room for opposition and civil society actors, regular elections and more or less a democratic constitution. The other side reflects the undemocratic methods and practices – abuse and selective application of laws, widespread corruption, extensive government influence and control in areas where the state should have no place, and manipulation of elections. One could say that the 1994 presidential elections were generally free and fair since Kuchma used public discontent with Kravchuk’s fragmented system and won. The next presidential elections, five years later, were marred by various types of abuse of the presidential administration. The fact that one of the main opposition candidates, Ruch leader Vzacheslav Chernovil, suddenly died in an “accidental” car crash, as well as the fact that strong pressure to withdraw from the presidential race apparently was exerted on then Prime Minister Viktor Yuschenko (which he later did) illustrate the atmosphere in which Leonid Kuchma won his second five-year term. The 1999 Presidential election was in fact a “one horse race” because Kuchma’s political opponents were mostly outsiders with no chance of winning. One might question Lewitsky-Way’s definition that Ukraine in Kuchma’s time belonged to the competitive authoritarian regimes, because, in fact, no real competition existed at all. On the other side, the elections for the Ukrainian parliament (Verhovna Rada Ukraini) in 1994, 1998 and 2002 were truly competitive, even “hypercompetitive”, because the party system was so fragmented, confusing and unstable.34 It can be noted that such a party system was actually one of 34

Maybe it was one of the reasons why Way emphasized that “Ukraine under Kuchma’s presidency was a model case of ‘competitive authoritarianism’ – a civilian nondemocratic regime with regularly held elections that are competitive but extremely unfair... Rarely has a regime been so competitive with a government as undemocratic as

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the pillars of a strong presidential government. This phenomenon is a well known pattern from some Latin-American democracies35 and also from the time of Yeltsin’s rule by decrees in the first half of the 1990s, or even throughout Walesa’s presidency during the chaotic first multiparty parliament in Poland, which consisted of 29 parties.36 An unstable party system with too many parties produces a fragmented parliament, which reinforces the only strong and stable institution in the country, the head of state. Such a situation encourages the tendency of that president, already strengthened by the constitution, to develop an “extreme and plebiscitary anti-institutionalized style of presidentialism,”37 which Kuchma did. The relationship between a strong president and a weak parliament becomes a strong interfering factor of consolidation of the democratic order. But, to the hybrid, semi-authoritarian regimes, consolidation of democracy is not the goal. We have already mentioned the definition of semi-authoritarian regimes, where it has been said that all this is not about “...imperfect democracies struggling toward improvement and consolidation, but regimes determined to maintain the appearance of democracy without exposing themselves to the political risks that free competition entails.”38 These regimes are not openly authoritarian because they operate within an international context in which pluralist elections reflect necessary legiti-

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Ukraine’s under Kuchma.“ Lucan Way, “Kuchma’s Failed Authoritarianism,” Journal of Democracy, Volume 16, No 2, April 2005. Guillermo O’Donnell named this type of behavior “delegative democracy”. This term describes the practice and style of some Latin American presidents who ignored “the horizontal division of power” (the one between the main branches of government - legislative, executive and judicial) and ruled mostly by populist appeal to “the people”, as if they were “delegated” by the people with the authority to act in capacity of “Salvador de la patria” (savior of the motherland). See: Guillermo O’Donnell, Delegative Democracy, Journal of Democracy, January 1994, pp.55-69. Thanks to the already deeply divided Solidarity in Poland, it was decided that there would be no threshold to enter parliament (!) for the parliamentary elections in 1991. This decision led to the complete fragmentation of the legislative body. Walesa, who was already elected president, used this situation by mostly having bad relations with weak and unstable minority governments and fostering an atmosphere in which the country needed, as he said, an “interventionist president who runs around with an axe in his hand.” Standing “above parties” and unstable governments, he exercised the duty of the Head of State more as a popular tribune than the president of the country that desperately needed institutionalization of the new democracy. Linc and Stepan, 1998, p. 498. Marina Ottaway, Democracy Challenged: The Rise of Semi-Authoritarianism, Carnegie Endowment for International Peace, Washington DC, 2003.

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mization of any polity that claims to be a democracy. In these circumstances, which differ from the context within which the former classic authoritarian regimes operated, a new model of transition is developed – transition through elections. This model was first applied to the parliamentary elections in Slovakia in 1998, when Mečiar’s government was removed from office, and then in Croatia in 2000 when the elections marked the end of 10 years of Tudjman’s regime.39 However, in the Slovak case, it is questionable whether the Mečiar regime had an edge that would put it among the authoritarian governments, while in Croatia the opposition took power in elections that followed shortly after Tudjman’s death. In symbolic terms, the physical departure of the Croatian president symbolized the end of his regime, so his party HDZ lost the elections with almost no significant resistance. A model of transition through elections passed its toughest test at the decisive confrontation with the Milosevic regime in Serbia’s presidential and parliamentary elections in September 2000 that triggered the removal of his regime by revolution. Serbia’s events would then serve as an example of transition through elections in subsequent “colored revolutions” in several countries of the former Soviet Union. The first of these was the Orange Revolution in Ukraine.

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A kind of predecessor of transition through elections model was the case of the Chilean dictator Augusto Pinochet. In fact, Pinochet lost power after the erroneous assessment that he could prolong the life of his authoritarian regime and of his personal power for another decade. Pinochet wanted to do it “legally”, through constitutional change. Chile’s authoritarian constitution, brought by Pinochet in 1980, envisaged that a national referendum will be organized on a presidential candidate appointed by the military junta once it decides to move to civilian rule. If that candidate receives a majority he will continue to rule as an “elected” president for eight years. The candidate in a referendum held in 1988 was Pinochet himself, but united opposition mobilized to take advantage of the aforementioned constitutional clause to prevent Pinochet from winning. Indeed, after an intense campaign exercised by the opposition Pinochet received only 44 pct. of the vote instead of the required 50.1 pct. This led to a presidential election the following year and the transfer of power to the newly elected democratic president Patricio Aylwin in March 1990. However, in the upcoming transition process the military had a very strong negotiating position and succeeded in many ways to hinder the transition in Chile. Pinochet succeeded to win for himself the position of the Joint Chief of the armed forces and Senator for life.

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The Second Transition – A Revolution with No Results, Inefffective Pluralism Unlike in conventional non-democratic regimes, elections become a means of transition in hybrid regimes, because the semi-authoritarian regime not only accepts the elections, but also uses them as the most powerful legitimacy source. Furthermore, in the late twentieth and early twenty-first century, hybrid regimes have accepted a high degree of electoral uncertainty, i.e. a possibility to lose elections. They attempt to prevent this possibility in various ways, mainly by assuring the playing field is not in fact level for all players. But, even using all the advantages the regime’s party or coalition and its candidates have at their disposal, the elections are highly competitive (“competitive authoritarianism”) and the result of the battle is largely unpredictable. Given this starting point, the political opponents of the modern hybrid regimes have developed a strategy that uses those elements of the regime which contain democratic characteristics (competitive elections, freedom of speech, gatherings, organization of the party, a significant degree of media freedom, an active and often very robust civil society, etc.) to get a chance to win the elections and open the way to a normal democratic society. In Ukraine, this strategy was used in a critical presidential election of 2004. This method of regime change also belongs to those who rely on the activities and decisions of rational actors, much more than on the structural conditions. However, although stakeholders of the transition are of crucial importance, this strategy does not succeed “by default”. Some conditions must be created, a certain perception in the minds of the people must reach a critical point, and unpredictable and random circumstances often play a role. The circumstances that must occur are usually related to the “overstretch of the regime”, i.e. its conduct that indicates it crossed the critical line. Crossing the critical line is usually transposed into the perception of the majority of the electorate that it “has already had enough”, but this collective feeling could transform to collective frustration only in the absence of appropriate political and electoral actors and their strategies offering an alternative to the people. Randomness can speed up the process, but is not necessary. In Ukraine, Kuchma’s regime began to exceed the “critical point” in his second term. Even the relative economic success during this period was unable to restore confidence in his rule. After manipulating the presidential elections of 1999 and consolidation of power, Kuchma acted characteristically for all hybrid regimes of the modern age. Given that this type of regime does not belong to the “closed” regime category and does not exercise full control over the society, but must tolerate the opposition, media, civil society, and often

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accept a certain power-sharing system in the institutions themselves, it usually happens that rulers use selective or preventive violence specifically against the above-mentioned actors because the regime does not perceive them as normal partners in a democratic system, but rather as obstacles to the extension of prerogatives of power. An example of this use of violence under Kuchma was the kidnapping and murder of journalist Hrihoriy Gongadze in September 2000. Although Kuchma has always denied his involvement in the murder, recorded tapes from the presidential office confirmed otherwise. The protests that followed were neither numerous nor strong enough to shake the regime, but gave the impetus to the campaign and the movement “Ukraine without Kuchma”.40 This movement in fact demonstrated the methods that would be developed in the Orange Revolution four years later. If we add that Kuchma’s regime used other standard means from the authoritarian arsenal – the restriction of media freedoms and activities of civil society, various types of economic pressure against businessmen that were friendly to the opposition, the use of corruption for political purposes, and so on – it is then much easier to understand why one part of the social actors, his allies in his first presidential term, turned their backs in his second term and started to join the opposition. Transition through elections is based on the nonviolent strategy, because it uses the standard and most powerful democratic legitimization tool, ballots. However, as in hybrid regimes, opposition is not faced with a routine election in an established democratic system where political parties from the government and the opposition measure the degree of popular support and therefore form the government institutions, but with a fight in which conditions are not equal and fair, this transition model is based on the mobilization of various social actors. They make a kind of “division of labor” in which opposition parties are responsible to find the best coalition formula that will threaten the regime’s election party or candidates. On the other side, civil society organizations (usually NGOs) focus on education and animation of the citizens to get out and vote in the elections, on establishment of effective control of the electoral process, and, in some cases, parts of the civil society enter into open, yet non-violent conflict against the regime’s institutions, thereby ex-

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Protests of 20-30,000 people gathered in Kiyv in December 2000. They even used tents to secure continuous presence in the centre of the city, but soon withdrew. See more: Valerie Bunce and Sharon Wolchik, Defeating Authoritarian Leaders in Postcommunist countries, Cambridge University Press, New York 2011, p. 119-120.

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posing themselves to no small risk.41 The opposition parties, though often not having the best mutual relations, usually have no better choice than to create a joint coalition as wide as possible. Sometimes a successful electoral strategy requires opposition to confront the regime’s presidential candidate (if the system relies on a strong president who is directly elected) with the person who has not previously been co-opted by the regime or has not collaborated with it, as was the case of Vojislav Kostunica of Serbia. In some situations it is the opposite, and the strongest challenge comes from the “inside”, from a person who could even be a senior official of the regime that at some point left the regime or went into conflict with it, as was the case of Yuschenko in Ukraine.42 In Ukraine, transition through elections unified all these essential elements. Former senior government officials Viktor Yuschenko and Yulia Tymoshenko managed to gather around them the broad opposition “orange” movement that was able to move masses against the regime’s candidate, the projected Kuchma heir, then Prime Minister, Viktor Yanukovych. On the other hand, a vibrant civil society, especially organizations like Yellow Pora, Black Pora, the Ukrainian Committee of Voters, Democratic Initiatives Foundation and the Razumkov Center, worked on mobilization of the voters to convince them that change is possible and not to opt for apathy and abstention. Finally, we should not underestimate the snowball effect. The impression made by the toppling of Milosevic from power in the pro-democratic movements throughout post-communist countries was quite strong to the extent that former Otpor activists became real “exporters” of the model in the October 5, 2000 revolution in Belgrade, ie. transition through elections. They actually cooperated closely with Ukrainian NGOs. Finally, it is difficult to oust semi-authoritarian regimes from power unless the country is not strongly linked to the West. If this link is strong enough, the 41

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A classic example of “subversive activities” of civil society was the youth movement Otpor in Serbia. Its members mostly were students whose provocative actions against the regime and the repression they suffered on that account, caused further resentment among the citizens towards Milosevic’s 13-year rule, marked mainly by wars and crises. A similar example in Ukraine was the organization called Black Pora that appeared for the first time in March 2003 and their actions directly provoked institutions of the regime. See more: Bunce and Wolchik, 2011, p. 131-132. During Kuchma’s reign, Yuschenko firstly assumed the position of the first Governor of the Central Bank of Ukraine (1993-1999), and then Prime Minister (1999-2001). He is remembered for his reform efforts while holding these positions. As Governor of the Bank he had the leading role in the introduction of the Ukrainian national currency, grivna. During his short term in the office of Prime Minister, Ukrainian economy improved.

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EU and USA can, using a “carrot-and-stick” strategy, exercise a different kind of influence on the regime so that it might avoid other possible violent scenarios. Ukraine is among the countries whose relations to the West are relatively strong, with aspirations of one day becoming part of the Euro-Atlantic community. This allowed US and EU diplomacies to act when the electoral crisis of 2004 reached its peak. This also enabled many foreign foundations that deal with “democratic assistance” to provide significant aid to the Ukrainian non-governmental sector. Many authors miss one factor that at least indirectly influenced the Ukrainian transition of 2004 – a division within Ukraine over its own identity. This division is usually expressed through the use of the Ukrainian or Russian language, but is much broader than that. Just a glance at the electoral map of Ukraine showing the distribution of votes is enough to demonstrate this division. Whenever Ukrainians perceive that election is about a “pro-Ukrainian” or “pro-Russian” candidate, the former will most convincingly win elections in Western Ukraine, and the latter in Eastern Ukraine and the Crimea. The “Orange coalition” did not insist on divisions along the identity lines, but it clearly had a “pro-Ukrainian“ perception of its own country. Recent political history is well known. The dramatic presidential elections in three rounds led to a defeat of Kuchma’s regime, although the outgoing presidential administration did everything possible to ensure the victory of its candidate, then Prime Minister Viktor Yanukovych.43 The plan to steal the election if necessary,44 the efforts of poisoning his rival,45 and non-recogni43

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“The third round” of the presidential elections did not exist as a legal option in Ukraine. It was actually a repeated run-off after the Supreme Court overturned the results of the previously held second round. In finding and negotiating such a solution the Ukrainian Parliament played very active role. One of the most active Ukrainian NGOs, Znayu (“I Know”), revealed the government guidelines on how to provide a large number of votes in favor of Yanukovych in the second round. For this project large sums of money provided were at the disposal of the regime’s activists, even for bribing voters if necessary, and if the plan failed, there was a backup tool in reserve – a secret computer server at the Central Election Commission that would falsify results. This plan was designed to secure Yanukovych’s victory by a 3 pct. margin in the second round, and it was actually implemented. Its realization was prevented by mass protests of the citizens of Ukraine and strong pressure against electoral fraud exercised by USA, EU, OSCE and Council of Europe. See more: Bunce and Wolchik, 2011, p. 121. The case of poisoning opposition presidential candidate Viktor Yuschenko by gas dioxin, of which visible effects remained on his face, is one of the most famous stories in the history of elections. There still exist a number of controversies, but a story that has been taken as the most valid in Ukraine is the one that Yuschenko was in some way

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tion of the election results, were only the best known of many actions that regime exercised in order to prevent a defeat. As in any other transition model, this conveyed the consolidation of democracy as being equally important as a mere change of regime, and perhaps more important. Ukraine’s second transition (which was supposed to be the first) failed on this issue. The Ukrainian case once again confirmed that the democratic transition and consolidation are not guaranteed to succeed. Success in this field is the achievement of the people, rather than the product of historical or economic forces. The Ukrainian “orange” political elite has shown that it lacked the vision and the political will to subordinate its own interests to the goals of the state. Forging a broad coalition against the (semi-)authoritarian regime is one of the greatest sources of strength of transition through elections. The broad coalition, as we noted, implies more social actors, of which political parties or their candidates are the most important. Since this is not the example of a routine election, a broad coalition is not created only for its candidates to take seats in the parliament, in the government or in the presidential palace, but to exert physical pressure, if necessary, in order to prevent possible attempts at falsifying election results (such as was precisely the case in Ukraine in 2004), or to force the defeated regime’s candidate to leave the office if he refuses to do so (as it was the case in Serbia in 2000). Although one of the greatest sources of strength in the electoral transition, a broad political and social coalition may also prove to be one of the biggest problems in the process of democratic consolidation. In normal democracies, a broad coalition is also subject to fragmentation and day to day functionpoisoned over the dinner with Ukrainian Security Service chief, Igor Smeshko, and his deputy Volodymyr Satsiuk, during the time of the 2004 election campaign. This meeting was arranged by David Zhvania, a businessman close to Yuschenko and a member of his party, “Our Ukraine”. The meeting was requested by Yuschenko himself in an effort to convince top security officials that Kuchma’s regime came to an end and that they should not interfere with the electoral process. This episode bears a striking resemblance to the meeting that, at the height of the election crisis in Serbia, the then opposition leader and future Prime Minister Zoran Djindjic, organized with the head of the notorious Serbian “Red Berets” Vladimir Lukovic Legija. The purpose of the meeting was exactly the same as in Yuschenko’s case, to convince him that Milosevic’s regime was finished and discourage Serbian special forces of any intention to act against the citizens. Both Yuschenko and Djindjic had to pay a price for this, it seems unavoidable “pact with the devil.” However, Yuschenko’s price was much lower, because the Ukrainian security service has not been embroiled in wars and war crimes. Serbian “Red Berets” actually used to serve only for the executions and war crimes while in the same time dealing with organized crime. Subsequently, they killed Djindjic himself as the last victim of their evil deeds throughout former Yugoslavia.

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ing isn’t always easy. However, in normal democracies there is a stable and long-lasting institutional framework, the rules are known, and the policies of opposing actors in the political arena are often not that diametrically opposed or at least the stakes are not so high. Non-functioning coalitions lead to early elections, the fall of governments can often be unpleasant, but it is all a matter of democratic routine. Italy has functioned in that manner for decades following the Second World War, and for countries such as Belgium and The Netherlands it is more or less a normal state of affairs. Japan has frequently changed governments, and this practice has recently been present in some post-communist countries like Slovenia, where the consolidation of democracy is no longer in question. Ukraine, after Kuchma’s authoritarianism, was not and could not be a routine European-like case. Its “orange coalition” was challenged even a year after winning the presidential election, while the partnership between its leaders, Viktor Yuschenko and Yulia Tymoshenko, evolved into a political rivalry that could not be moderated even in the period of tactical cooperation during Tymoshenko’s second term as Prime Minister. The period of the Orange Revolution in power resembled Kravchuk’s “pluralism by default” from the early 1990s, of course, without an authoritarian presidential figure. In this respect, the Orange Revolution proved to be successful – it removed from power an authoritarian regime. But, after Kuchma’s consolidation of the state power and (mis)use of the institutions for the sake of authoritarian rule, the weakness of the state and chaotic functioning of its institutions returned along with the “Orange” coalition. “Incapable pluralism”46 featured by political elites from almost all important parties to be primarily preoccupied by personal or group interests, became a political context that followed the Orange Revolution. It was no surprise that the greater public perception was that most of the political actors were corrupt and inefficient. In the eyes of the electorate, changes in power have thus more or less been seen as a problem-switching from one government or group to another, with almost no expectation that the country’s problems could be successfully addressed. Technically, the system operates as a democracy, there are no limits in the functioning of the civil society, no institution rises above the others or beyond the constitutional framework and the common principles of separation of powers; but the democracy is emptied of all content.

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Mykola Riabchuk, National Endowment for Democracy (NED), panel in the International Forum for Democratic Studies, Ukraine`s Convoluted Transition: Between Dysfunctional Democracy and Unconsolidated Authoritarianism, Washington, D.C., May 26, 2011.

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In such a situation, political actors overestimate their capabilities and are often guided by misconceptions and fantasies rather than reality. Yuschenko believed that his aura of Orange Revolution leader and his presidential position provided sufficient power to appoint and dismiss the government at will. Yulia Tymoshenko also relied on the glory from the revolutionary days and was convinced that she must be Prime Minister of Ukraine. Less powerful politicians of the “orange” block were prepared to enter into different arrangements for powersharing and to forge any political alliance. In fact, similar to Kravchuk’s first transition period, it was a balance of the powerless actors, whose rating in public opinion consistently and seriously declined.47 During this time, the player who was actively waiting and preparing for return to power was the one defeated in the presidential elections in 2004, Viktor Yanukovych.

Yanukovych in Power – Reversed Transition? A reliable sign of an authoritarian turn is manipulation of the institutions, in the Ukrainian case, by the constitution and the election law. Of course, changing or amending the constitution and election law in a democratic society is not in itself a signal for alarm, as long as these changes are implemented in accordance with established procedures and with relatively broad consensus among the political elite. However, when these actions are the source of serious political conflict, taking place mostly unilaterally and without broad consensus thereby dramatically changing the legal framework of the future political process, the situation becomes worrisome. A few months after Viktor Yanukovych took power, the Constitutional Court of Ukraine decided on September 30, 2010 to undertake a very unusual step – to de facto repeal the current constitution of the country and declare a return to the Constitution of 1996. From strictly a legal standpoint, the entire action took a very unusual course. The Constitutional Court found that the amendments to the Constitution of 2004 were unconstitutional on procedural grounds. Therefore, the Constitution automatically reverted to the provisions of the Constitution of 1996.48 47 48

After five years in office, the once iconic figure of the Orange Revolution, Viktor Yuschenko, got only 5.45 pct. of the votes in presidential election in January 2010. As it is usually the case with the manipulation of the institutions, controversies difficult to explain followed the decision of the Constitutional Court. Actually, the Court had already ruled on the same issue in February 2008, and rejected the plea of uncon-

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Amendments to the Constitution of 2004 served actually as an instrument of compromise among the leaders of the Orange Revolution and a tool of the redistribution of power. By these amendments the de facto presidential system under Kuchma was replaced by the model of government in which elements of parliamentarism are predominant. The power of a popularly elected president has been significantly reduced. Return to the Constitution of 1996 reverted this change and again strengthened presidential power.49 According to the returned provisions from the Constitution of 1996: the president has the authority to appoint the Prime Minister and cabinet ministers regardless of the balance of power in parliament; he can dismiss the government and for that action does not need the approval of the Parliament; he can rule out any decision of the government, because government can not have its own program or policy different from the presidential one for the fact that the President is the Supreme Head of the executive; presidential term in office is five years. On the other side, the Parliament, since it no longer has control over the appointment of the government, may, but need not, form a parliamentary majority; may at any time vote no confidence to the government; can overvote presidential decrees only by a two-third majority (300 out of 450 deputies) which is very difficult to imagine in the Ukrainian politics. How big and deep this constitutional change was, as well as how controversial was this legal method for implementation, is well reflected in the Venice Commission’s opinion “On the Constitutional Situation in Ukraine”. The Commission notes, among other things, that it “... considers highly unusual that far-reaching constitutional amendments, including the change of the political system of the country... are declared unconstitutional by a decision

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stitutionality of the amendment of 2004. It argued that, once adopted, constitutional amendments have become an integral part of the constitution and the law that put amendments into effect can no longer be disputed, since it has been repealed. Two and a half years later, after a change of government in Ukraine, the Constitutional Court declared the amendments of 2004 unconstitutional, not referring at all to its own decision from 2008. In his typology of political systems and types of executive power, an American political scientist Mathew Shuggert determines the mixed system as it was in Ukraine (and Russia after Yeltsin’s constitution of 1993), as a presidential-parliamentary one, while the French system he calls premier-presidential. These terminological differences highlighted the weakness of the cabinet in post-Soviet states that have adopted similar type of system, in contrast to France where the government in the “cohabitation” time is actually not weaker than the president. See more: Matthew S. Shugart, “Of Presidents and Parliaments,” East European Constitutional Review, Winter 1993, p. 30-32.

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of the Constitutional Court after a period of 6 years.”50 To what extent this far-reaching constitutional action is controversial for the Ukrainian institutions themselves can be clearly understood from a number of issues which the Commission addressed in the same opinion: “The reinstatement of the 1996 version of the Constitution by a judgment of the Constitutional Court of Ukraine raises questions of the legitimacy of past actions, as the institutions of Ukraine worked for several years on the basis of constitutional rules later declared unconstitutional. It also raises questions of legitimacy with respect to the present state institutions, since the President and the Parliament were elected under constitutional rules that are no longer recognized as valid. The President of Ukraine, as from this judgment, enjoys far more powers than could be foreseen by the voters when he was elected. The working of the main state organs is now based on rules changed by a court and not on rules changed by the Verkhovna Rada, as a democratically legitimate body.”51 Similar controversies have emerged over the change of the electoral law, although, unlike the constitutional change, it is so far being implemented by normal procedure in a legal-normative sense. But, as is the case in changing the type of the executive, change of the electoral law is drastic. It is not an intervention in the existing law, but change of the very model. The existing purely proportional system is to be replaced by the new/old mixed system, which means that half of the parliament will be elected by the traditional majority principle (first-past-the-post) in 225 single-member districts, while the other half will be elected on the basis of proportional representation in the country as one constituency. There is one striking similarity with the recent constitutional change. It is the fact that the electoral system also returns to the 1996 model. It is worth mentioning that the 1996 model had been replaced by a proportional system in 2002 due to it being dysfunctional. No electoral system is perfect by itself. Each has its advantages and disadvantages. The famous debate between Lijphaart and Lardeyret-Quade in 1991, as so many debates before and after this one, has never resolved the issue of which electoral system is “better” and left things in a state that “the jury on this matter is still in session.” However, it is usually considered that the introduction of a majority system, or a majority element in the electoral system, favors big parties and that the system is a guillotine for small parties. Bearing that in mind, it is hard to resist the impression that change is motivated by the desire of the ruling Yanukovych’s Party of Regions to compensate its possible lack of support in the electorate by the effects of the majority system. It 50 51

Venice Commission, CDL-AD(2010)044, Strasbourg, 20 December, 2010., p. 6, para. 35. Venice Commission, 2010, p. 11, para. 70.

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is very well known that the majoritarian system is the one in which the magnitude of the distortion of electoral will is greater than in any other electoral method. It may be concluded that the return to the presidential-parliamentary system, and along with it the mixed electoral model with the inclusion of the majority principle, goes hand in hand with the pursuit of a new president to reshape institutions by his own needs. One can speculate that, following Kuchma’s footsteps from the first transition period, the new president seeks, after “incapable pluralism” of the “orange” coalition, to stabilize, consolidate and centralize power in his hands, introducing strong “vertical power”.52 By recent legislative actions, the constitutional and political system has been de facto returned in the Kuchma’s period.53 In addition, Yanukovych made some steps to push the country into some form of isolation. Opposition leader Yulia Tymoshenko, Yanukovych’s defeated rival in the presidential race of 2010, was sentenced to a prison term of seven years (!) for alleged abuse of concluding the harmful gas agreement with Russia. EU immediately assessed that the trial and the verdict were politically motivated.54 That the country has serious problems with the rule of law and independence of the judiciary, problems which then seriously affected the country’s human rights record, was also confirmed in the Draft Resolution unanimously adopted on by the Committee on the Honouring of Obligations and Commitments by Member States of the Councile of Europe (Monitoring Committee). The Draft Resolution concludes that the Ukrainian Criminal Code effectively allows “postfacto criminalisation of normal political decision-making” and reminds that 52

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This kind of reasoning is pretty much widespread among authors writing on Ukraine, and one of them is rather typical: “His goal appears to be to create a system that will allow him and his network of oligarchs to gain and consolidate control over Ukraine and its assets, benefiting from them without external interference. Staying in power is a matter of survival for Yanukovych and his entourage. They will do everything to establish their control over the different branches of government, putting their people in the right places, and silencing those who speak out against them.”, Olga ShumyloTapiola, Viktor Yanukovych: A Man of Oligarchs, Carnegie Endowment for International Peace, Commentary, March 10, 2011. In the fall of 2010 the Constitutional Court overturned the 2004 political reform on procedural grounds and restored the 1996 Constitution. This returned Ukraine to a presidential republic, significantly diminishing the role of the Parliament and placing the government under presidential control. The presidential administration returned to the center of decision making, as it was under Kuchma (Olga Shumylo-Tapiola, 2011). “A statement from EU foreign policy chief Catherine Ashton said the trial confirmed that justice was being applied selectively in Ukraine in politically motivated prosecutions of opposition leaders and members of the former government.” Reuters, October 11, 2011.

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“...the assessment of the political decisions and their effects is prerogative of parliaments, and ultimately of the electorate and not of the courts.”55 Conclusions in the Danish Helsinki Commission Preliminary Report on the Investigations of Yulia Timoschenko in November 2011 follow the same track. It emphasizes violations in statute of limitation principles, opening the cases contrary to this principle in a rather arbitrary way and a wrong balance of power between Prosecutor Office and the Judiciary, of course in favor of the former. Actually, this excessive power of the Procuratura is one of the legacies of the communist past and is not unique in Ukraine. But what is unique is a number of former members of the government prosecuted and effectively sentenced. When a former prime minister ends up in jail for what that Council of Europe’s bodies describe as “normal political decision-making”, it seriously affects any future transition of power, aggravating and prolonging consolidation of democracy in the country. The question that arises is whether the dramatic institutional changes and return to the methods of governance from the time under Kuchma means that the country is returning to the system of that time – competitive authoritarianism. In other words, whether after 21 years since becoming independent and rejecting the Soviet system, Ukraine will continue to move in a vicious cycle of failed transition, adopting, rejecting and returning back to the same or similar models of governance – from Kravchuk’s “pluralism by default” and “incapable pluralism” of Orange Revolution, to Kuchma’s and Yanukovych’s competitive authoritarianism. Or on the contrary, if throughout the last 20 years as Ukraine has become politically and economically open enough, its political opposition and civil society have become strong enough, Ukrainian membership in many international organizations, and the desire to join the EU providing a significant influence of the West towards the full democratization of the country, whether things have changed to the point where no one, no matter how eager and resourceful in trying to make power absolute, will survive.

Literature and References Almond, Gabriel, and Sidney Verba, The Civic Culture, Princeton University Press, Princeton 1963. Almond, Gabriel, and Sidney Verba, The Civic Culture Revisited, Sage, London 1989. Barry, Brian, Sociologists, Economists and Democracy, Macmillan, London 1970.

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The Draft Resolution was adopted by the Monitoring Committee on December 15, 2011.

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Bunce, Valerie, and Sharon Wolchik, Defeating Authoritarian Leaders in Postcommunist countries, Cambridge University Press, New York 2011. Dahl, Robert, Polyarchy: Participation and Opposition, Yale University Press, New Haven 1971. Darmanović, Srdjan, Real-socijalizam: anatomija sloma, Podgorica 1995. Diamond; Larry, and Marc F. Plattner (eds.), The Global Resurgence of Democracy, John Hopkins University Press, Baltimore 1996. Draper, Theodore, “Who Killed Soviet Communism?”, The New York Review of Books, June 1992. Higley, John, and Richard Gunther (eds.), Elites and Democratic Consolidation in Latin America and Southern Europe, Cambridge University Press, New York 1992. Huntington, Samuel, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Noramn 1991. Levitsky, Steven, and Lucan Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War, Cambridge University Press, New York 2010. Lipset, Seymour Martin, “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” American Political Science Review No. 53, 1959. Lipset, Seymour Martin, Political Man: The Social Bases of Politics, Doubleday, New York 1960. Linc, Huan, and Alfred Stepan, Demokratska tranzicija i konsolidacija, Filip Višnjić, Beograd 1998. Linz, Juan J., and Alfred Stepan (eds.), The Breakdown of Democratic Regimes, John Hopkins University Press, Baltimore 1978. Mainwaring, Scott, and Donald Share, “Democratization through Transaction: Democratization in Brazil and Spain,” in Wayne Selcher (ed.), Political Liberalization in Brazil, , Westview Press, Boulder, Colorado, 1986. Michnik, Adam, New York Review of Books, July 19, 1990. O’Donnell, Guillermo, and Philippe C. Schmitter, Transitions from Authoritarian Rule – Tentative Conclusions about Uncertain Democracies, The Woodrow Wilson International Center for Scholars, Washington, D.C. 1986. O’Donnell, Guillermo, “Delegative Democracy,” Journal of Democracy, January 1994. Ottaway, Marina, Democracy Challenged: The Rise of Semi-Authoritarianism, Carnegie Endowment for International Peace, Washington, D.C., 2003. Przeworski, Adam, Democracy and the Market, Cambridge University Press, Cambridge 1991. Riabchuk, Mykola, National Endowment for Democracy (NED), panel in the International Forum for Democratic Studies, Ukraine`s Convoluted Transition: Between Dysfunctional Democracy and Unconsolidated Authoritarianism, Washington, D.C., 26. maj 2011.

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Rose, Richard; William Mishler and Christian Harper, Democracy and Its Alternatives, The John Hopkins University Press, Baltimore, Maryland 1998. Rustow, Dankwart, “Transitions to Democracy: Toward a Dynamic Model,” Comparative Politics, 2/1970. Schedler, Andreas, (ed.), Electoral Authoritarianism: The Dynamics of Unfree Competition, Lynne Reiner Publishers, Boulder, Colorado, 2006. Shugart, Matthew S., “Of Presidents and Parliaments,” East European Constitutional Review, Winter 1993. Schmitter, Philippe C., “Dangers and Dilemmas of Democracy,” Journal of Democracy, April 1994. Venice Commission, CDL-AD(2010)044, Strasbourg, December 20, 2010. Way, Lucan, “Pluralism by Default in Moldova,” Journal of Democracy, Vol. 13, No. 4, 2002. Way, Lucan, “Kuchma’s Failed Authoritarianism,” Journal of Democracy, Volume 16, No 2, April 2005.

chapter 9

Human Rights in and around Cuba: Monolithic Discourse or Actual Alternatives? Jan Gustafsson

Introduction The politics and debates of human rights in Cuba have, almost since the revolutionary victory of January 1, 1959, been closely linked to specific political positions reducible to being for or against the revolutionary government led by the Cuban Communist Party (PCC). On the national as well as the international level, the question of human rights in Cuba has been tied up to political and identity dichotomies, in one case – the national – as being or being not “one of us”, and in the other, as a question of the revolutionary regime’s right to existence as such. Inside Cuba, the question of rights has been connected to two main ideas of the “subject of rights”, one, the state – or rather, the Revolution – considered as the almost personified essence of the real Cuban nation and the “grand” subject of rights, and the other, the human, national subject, considered either “integrated and revolutionary”, and thus included and a subject of rights, or, counter-revolutionary, and therefore against the nation and excluded from this and as a subject of rights. Externally, at the level of international politics, the problem has, likewise, been closely linked to specific political positions, either in favor of, or against the revolutionary regime. In very broad terms, those who sympathize with the Cuban government tend to excuse violations of human rights and explain these as unintended bi-products of the revolutionary process or (and) as necessary measures to defend the national security. The opponents, on the other hand, will tend to use actual or alleged violations of human rights as a main argument against the regime, claiming that such violations are an inherent element of the regime’s nature. In both cases, human rights are subordinated to pre-existing political positions with an important element of Cold War heritage. This situation seems to have been going on for about five decades, and not even the changes that have taken place during the later years – including the economic reform process initiated by President Raúl Castro in 2009, and the possibility of more pragmatic political positions gaining more influence in both Cuban and the US government – seem to have changed this scheme fun-

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damentally. So, in order to analyze important aspects of the question of human rights in Cuba, in a past, present and also future context, it is vital to include broader questions of subjectivity and power. The broader background of mechanisms of power, inclusion and exclusion that have dominated politics, human rights and, more broadly speaking, citizenship and subjectivity in and around Cuba for decades is essential to discuss in order to understand that human rights is a question much more complex than what becomes manifest in, for instance, reports on formal violations of rights. This does not necessarily imply that the situation is “worse” (nor “better”), but rather that it is more complex and multilayered. However, the reform process initiated by Raúl Castro, as well as later events and developments, do constitute an important context in relation to which one can discuss the problems of human rights in Cuba. Therefore, this chapter will include a brief discussion of the reform process, and then proceed to the broader background of power mechanisms and subjectivity, discussed on a general level, first, and then with point of departure in the particular case of the feature film Fresa y chocolate (Strawberry and Chocolate). Finally, also the questions of the increasing transnational dimension of Cuban society and, the one of social memory will be discussed shortly.

The Reform Process under Raúl Castro In 2009 the Cuban government, led by Raúl Castro, initiated an economic reform process. In official terms, the objective of this process is to bring the Cuban economy “up to date”. A pragmatic, rather than an ideological approach to the socialist model is a key element in this process, which includes the dismissal of a million state-employed workers and the creation of a more dynamic private sector of small-scale enterprises. Among the main goals of these reforms is to resolve two of the most constant and serious problems of the country since the Revolution in 1959. One is the chronic tendency of low productivity in broad sectors of the economy, and the economic model’s no less chronic incapacity of meeting the population’s daily needs and desires of consumption, including basic needs as decent housing for every family and a sufficient and balanced nutrition. Obviously, the two problems are closely connected. Although these problems and the capacity of solution have had ups and downs during the last 50-odd years, the Cuban revolutionary economy has never been able to provide solid and durable solutions, neither to its own dynamics nor to the general population’s needs (cf. Ritter 2004, Rowe

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and Yanes 2004).1 These economic objectives also point to important political goals. The survival of the revolutionary regime is a central priority in a situation in which both radical reforms and a generation shift of the leaders are critical necessities. In 2006, the charismatic maximum leader, Fidel Castro, fell ill, and his four years younger brother and second in command, Raúl Castro, took over the presidency. The whole maximum leadership of the Communist Party and the government organs has an average age of around 76 years or more. In this situation, one of the most important goals of Raúl Castro’s leadership is to secure the continuity of the nationalist revolution of 1959, even if that means to reform the socialist model, which was announced in 1961 and adopted during the 1960s. And two of the most important problems to solve in order to secure the survival of the “Revolution” – i.e. the current nationalist regime – are the general economic dynamics on one hand, and the population’s satisfaction on the other. So, the double economic objective of the reform process implies also the political question of the regime’s survival. Furthermore, in several ways the economic reform process is related to the question of human rights. First, because the survival or not of this government is of key importance to human rights. Second, because the reform process can have a positive impact on the social and economic rights of the Cuban population, although the dismissal of a million workers, on the other hand, also has a negative impact on the social and economic situation of an important population segment, especially the people with less economic and cultural capital. Third, because the economic reform process could, at least potentially, imply political reforms as well, and such reforms and the current process as a whole could affect the situation of human rights, both positively and negatively. In fact, the situation of human rights in Cuba shows important contradictions, and even paradoxes. At the beginning of 2010 the government engaged in a process of liberation of prisoners of conscience, which included direct and formally recognized negotiations with the Catholic Church in Cuba. An important number of prisoners were released, among whom a majority of the prisoners from the so-called Primavera Negra (Black Spring) in 2003, when 75 dissidents were imprisoned for attempting against the security of the state. While it is not unknown for political prisoners to be released and allowed to go into exile, this has normally been kept more or less as a secret, also when 1

Archibald Ritter, “The Cuban Economy in the Twenty-first Century. Recuperation or Relapse?” and Nicholas Rowe and Ana Julia Yanes Faya, “Cuban Monetary Policy. Peso, Dollar or Euro?” both in: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004.

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it has been a result of negotiation, for instance with foreign states. So, such a situation is new in at least three senses. First, massive and relatively public releases of prisoners is a seldom – although not unseen – event in Cuba. Second, it implies a de facto recognition of these prisoners being political or conscience prisoners, even if the Cuban state does not officially accept this category. And third, the Cuban state has publicly recognized another (Cuban) actor, and a religious one, as a legitimate negotiation partner. All these elements constitute important changes in the perception and practices regarding human rights in the country. Another new practice is that groups of dissidents have been acting in public, sometimes with what could seem to be a tacit acceptance by the authorities. The most important example is Las Damas de Blanco (the Ladies in White), an organization of female dissidents and wives of imprisoned dissidents. On the other hand, a series of repressive practices have continued during the later years and, according to some sources, even been reinforced. Among such practices is the attack by non-uniformed persons on dissidents or arrests of critical bloggers or active dissidents. These contradictory manifestations do not permit us to make any conclusive analysis on the problem of human rights. On one hand, the Raúl Castro government is more pragmatic than Fidel Castro’s was in some respects, and its explicit wish to include religious beliefs and also sexual orientation as an individual right of any Cuban citizen could point toward a desire to connect the economic reform process to include a higher degree of personal liberties. On the other hand, the abovementioned aggressions against, or arrests of, dissidents, such as the Damas de Blanco, wives of incarcerated dissidents who have become a movement themselves, or the critical blogger, Yoani Sánchez, seem to indicate that the process has its clear limits. Probably, there is no single explanation of these facts, and as stated above, a study of the background of power mechanisms and the different “subjects” of rights will provide a better understanding of the situation of human rights in Cuba.

Inside and Outside: The Constituting Dichotomy and the Subject of Rights The question of (human) rights is, in any social context, closely connected to an understanding of the (human) subject as person and citizen. In order to understand some crucial elements of the Cuban context of the last 50-odd years, I propose to start with a look at one of Fidel Castro’s – Cuba’s maximum leader from 1959 to 2008 – most famous and discussed speeches, namely his Palabras a los intelectuales (Words to the Intellectuals), pronounced in Havana, June

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1961. This speech, and particularly the words quoted below, is mostly interpreted as an announcement of future limits for writers” and artists” creative liberty and freedom of expression.2 The speech did indeed address these problems and was partly motivated by ongoing discussions about censorship. However, if interpreted within a broader social context, the quote becomes very eloquent of a basic conception of the human subject and its rights in revolutionary Cuba from the early 1960s and on. The most quoted words of the mentioned speech are the following: “[…] within the Revolution, everything; against the Revolution, nothing”).3 This means that, within the limits of the “Revolution”, i.e. the newly constituted power and political project, there is freedom and rights, but not to go against the “Revolution”. In other words, the speech announces an end to a traditional perception of artistic freedom of expression and subordinates this right to the social, political and economic project of the Revolution. Rights are not seen as absolute, but in relation to the “national interests”. But Castro’s conception of the relation between individual rights and political power is not limited to a common idea of “national interest” or “the state’s security”. It rather constitutes another, and absolute subject of rights, which is the Nation-Revolution, as an extended quote will show: [T]his means that within the Revolution, everything; against the Revolution, nothing. Against the Revolution nothing, because the Revolution also has its rights, and the first right of the Revolution is to exist, and above the Revolution’s right to be and to exist, no one. As the Revolution means the interests of the people, as the Revolution means the interests of the whole Nation, no one can reasonably claim a right against it. […] And this should not be an exceptional law for artists and writers. It is a fundamental principle of the Revolution. The counterrevolutionaries, that is, the enemies of the Revolution, have no right against the Revolution, because the Revolution has a right: the right to exist, the right to develop, and the right to triumph; and who could question that right of

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Diana R. Soles, “Administración de la crítica: tácticas de censores y cineastas cubanos en los noventa.” In: Tinajero, Araceli (ed.): Cultura y letras cubanas en el siglo XXI. Iberoamericana/Verwuert, Madrid 2010. Original text: “…dentro de la Revolución, todo; contra la Revolución, nada.” (Fidel Castro, Obras Escogidas, Tomo I. Editorial Fundamentos. Madrid 1976, p. 146-147; my translation). For a further discussion on these problems, see Rafael Rojas, “Ideología, cultura y memoria. Dilemas simbólicos de la transición.” In: Marifeli Pérez-Stable (ed.), Cuba en el siglo XXI. Ensayos sobre la transición. Editorial Colibrí, Madrid 2006.

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a people who has said: “FATHERLAND OR DEATH”, that is, “Revolution or Death.”4 I believe it is worthwhile to dwell on the analysis of this part of the speech and its consequences. As said, the speech has mostly been analyzed in relation to its immediate context, i.e. the question of the relation between the revolutionary power and the Cuban intellectuals. But as it implicitly and explicitly goes beyond that context and seems to establish a particular version of reason of state, it calls for further interpretation. The Revolution, capitalized and thus singular, is established as a subject of rights within a discussion of freedom of speech and thought. It is a subject of rights whose first right is the “right to exist”, which means that no one has the right to go against it, because that would attempt against this first right to existence. The right to “exist” is then extended to the right to “develop” and finally to “triumph”, which implies the right to repress those – the counterrevolutionaries – who go against that right. The extension of the right to “exist” to the right to “triumph”, points toward an idea of an absolute right of an absolute subject. The Revolution is the absolute subject and this subject is elevated further due to a double equation: The Revolution is equated to the “people” and to the Patria (the Fatherland). The Revolution is, thus, the subject above all other subjects and the privileged holder of rights. The Revolution is the synthesis of the nation and the people. In this way, a rather extreme, although hardly unique, version of the reason of state is established. To do or to express anything against the Revolution would not be an act of political or ideological dissent, but an act against the nation and the people of Cuba, whose history has reached a point of culmination with the Revolution.5 The intellectual, and the common citizen as well, are recognized as a subject of rights, but these rights are “within the Revolution” and never “against” it. But the “Revolution” is – in the Cuban context – as well as “nation” and “people” are – in the Cuban context and in general – what

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Castro, 1976, italics in original; my translation. Cécile Leclercq has showed how official and non-official narratives of Cuba’s history depict the Revolution as a culmination of the national struggles and aspirations (Cécile Leclercq, El lagarto en busca de una identidad. Madrid, Vervuert Iberoamericana, Madrid 2004).

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in discourse analysis is referred to as “empty” or “floating” signifiers.6 Translated to more common terms, this means that “Revolution”, as well as “nation” and “people” are not actual entities “out there”, but rather concepts created in and by the political discourse and as a part of the mechanisms of power.7 The opposition between the preposition “within”, indicating inside a space, and “against”, which here indicates political and ideological adherence, adds a further dimension to the constitution of subjects and rights within the political discourse and power mechanisms. The space of rights is limited to the space of “within” (the Revolution). It is the space where everything is possible, as long as it is not “against” (the Revolution). It has a further implication, namely that there is a parallel opposition between “outside” and “for”. If you are not “against”, you are “within”, but if you are not “for” or in “favor of”, you are “outside”. There are two oppositions and two equations, and the equation between “outside” and “against” becomes especially meaningful in a context in which “Revolution” is equated with “nation” and “people”. In other words, to be against the Revolution is to be outside, not only outside the revolutionary political and ideological project, but outside Cuba.8 If this was a mere exercise of textual analysis, there would be no major point in discussing some words pronounced more than 50 years ago. But this discussion relates to a profound problem of human rights in Cuba, a problem which not just, nor mainly, concerns formal violations of human rights, but rather deeply rooted social mechanisms of inclusion and exclusions that in some way or another have existed since the early years of the Revolution. There is no doubt that today such mechanisms, together with the Cuban society in general, are going through a process of crisis and change, but they are still very present in Cuban society, and even after radical political changes they will continue to play a role, among others as a question of social memory. Maybe a main problem is that the discursive hegemony not only permeated the media and the public space, but also very much the private and intimate 6

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Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy. Towards a Radical Socialist Politics. Verso, London 1985; Ernesto Laclau, On Populist Reason. Verso, London 2005; Jan Gustafsson, “The Nation and the Revolution – Techniques of Power and Interpellation in Revolutionary Cuba.” In: Niels Bjerre-Poulsen, Helene Balskev Clausen and Jan Gustafsson (eds.), Projections of Power in the Americas. Routledge, New York 2012. Gustafsson, 2012. Jan Gustafsson, “Mellem jegets tomhed og diskursens ubærlige tyngde. Subjektivitet og interpellation i ’Minder fra underudviklingen’”. In: Inge Degn, Jan Gustafsson and Ken Henriksen (eds.), Subjektivitet, sprog og erfaring i en transkulturel kontekst – Otte bud på en socialhumanistisk forskning. Aalborg Universitetsforlag, Aalborg 2005.

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spheres of people’s lives. Such penetration is to be understood beyond the fear of being accused by a neighbor, friend, or even family member, of “anti-social” or “counterrevolutionary” attitudes if a person has been too open-mouthed or critical in a private conversation. Although there is no doubt that such fear has existed and was justified, the question goes deeper than that and concerns the individual subject’s consciousness and intimacy. To a great extent the hegemonic discourse was interiorized by the common subject, who, to some extent, would be able not only to reproduce it (from early childhood), but would also interiorize it as the “true” discourse on what a good Cuban is and should be. But at the same time, most people would observe and wish to criticize negative social phenomena of different kinds that the Revolution had caused or failed to remedy. This created a phenomenon of “double discourse” and “double consciousness”, somewhat similar to the idea coined by Du Bois at dawn of the 20th century.9 Common Cubans would be able to reproduce the hegemonic discourse, but would also have alternative, and often opposing, perceptions of the country’s social reality. Most people would make a clear distinction of when and to whom use each set of discourses, and for some people such distinction could be very conscious and more or less cynical – “I do and say what I am supposed to do and say, but intimately I think differently” – or both sets of ideas and discourses could be juxtaposed, maybe without the individual reflecting too much on their mutual contradiction. Fidel Castro’s Speech to the Intellectuals, as quoted above, can be seen as an announcement of a discourse (and further practices) of revolutionary power that imposes a vision that identifies the (Cuban) “nation” and “people” with the idea of the “Revolution”. As proposed above, “nation” and “Revolution” are floating signifiers, whose exact meaning is not fixed once and for all. Their articulation creates a nodal point, i.e. a central instance or moment of the discourse, which articulates its basic and undisputable “truths”.10 Theoretically speaking, such mechanisms belong to any political discourse, but what is important in this context is the Cuban specificity that ties Revolution to nation in a way that excludes all other discursive possibilities.11 The nationalrevolutionary discourse establishes a dichotomy, as proposed, between what is “within/in favor of” the nation-Revolution, and what is “outside/against” it. The consequence of this is that the individual subject is up against a solid and totalized discourse that places opposition or simple dissent as something not just opposed to the Revolution, or the revolutionary political discourse, 9 10 11

W. E. B. Du Bois, The Soul of Black Folks. [1903] Penguin Books, New York 1996. Laclau and Mouffe, 1985; Laclau 2005. Gustafsson, 2012.

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but to the nation itself. Such mechanisms of exclusion have much more radical implications of psychosocial character. To be excluded from the national community as such – due to “un-Cuban”, i.e. “counterrevolutionary”, attitudes or behavior – is something very different from being against a specific political regime, whichever consequences such opposition might imply. To be excluded, in one way or another, from the community of the nation – one of the basic human communities of modernity – implies a social elimination of the subject.12 The excluded person will become less of a citizen and eventually lose some of her/his rights and, maybe worst, self-esteem and esteem by others in a process of stigmatization and loss of identity.13 On a more specific level, such exclusion from the national-revolutionary (imagined and physical) community could happen in various ways and to various degrees. Besides suspicion, harassment and stigmatization by authorities and/or fellow citizens, two types of more concrete practices could take place: A person could be excluded from the immediate social surroundings by losing her/his job, especially if it implied a high-skilled and attractive position, and, the person could be seen as a kind of pariah in the neighborhood, someone with whom it was not advisable to have social contact. The other – and often complementary – mechanism was, and still is, the physical exclusion of the person from the national territory, mostly in the sense of a voluntary or forced exile. The types of “violations” against the existing political and ideological behavioral codex did not necessarily imply actual or conscious anti-revolutionary attitudes. In the first decades of the Revolution, religious beliefs or homosexuality were explicitly or implicitly regarded as incompatible with being an “integrated” revolutionary, and doubts about such attitudes could damage a person’s public image and implied a potential danger of losing a highly respected job or political position, as well as suffering social exclusion and isolation. It should be stressed that these repressive mechanisms were not necessarily sanctioned by law, as they rather belong to a more informal “projection” of the revolutionary power, including norms of good and bad behavior and of being – or not being – a “good Cuban” and a good revolutionary.14 Sanctions against a person suspicious of anti-social or anti-revolutionary attitudes – the two terms would rather imply levels on a scale than different types of attitude – could be more or less formal, and could be implemented without the person 12 13 14

Benedict Anderson, Imagined Communities. London 1983. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity. Simon and Schuster, New York 1963. Gustafsson, 2012.

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being notified of the suspicion. The mass organizations – the Cuban civil society – would often play a major role in this activity of civil control with social and political attitudes. Especially the CDR-Committees (Comités de Defensa de la Revolución – Committees for the Defence of the Revolution), which are organized on a local territorial basis, were (and still are) important instances of civil control. What also should be stressed is that this situation cannot be seen as a simple act of repression of one actor (the general population) by another (the revolutionary authorities). Not only did – and does – a considerable part of the “civil society” participate in the activities of control and denouncement of “wrong” attitudes, but the very idea of what it is to be a “good” citizen, Cuban, and “revolutionary” was a basic part of the social imaginary in Cuba, at least in the 1970s, 1980s and 1990s. So, besides (and more than) a question of more or less formalized repressive mechanisms against a potential or possible political or ideological dissent, the mentality of controlling potential “antisocial” and ideologically “deviated” or “weak” attitudes corresponds at least partly to nationalist and revolutionary attitudes of sympathy with the existing power regime. To acknowledge such a complexity of political and ideological attitudes added to the complexity of mechanisms of power and control is important in order to understand the – also very complex – situation of human rights, politico-ideological attitudes and repressive mechanisms in revolutionary Cuba.15 In this context, the situation of recognized dissidents and formalized repression is only one dimension of a general situation that permeates a whole society and that is important to understand in order to be able to grasp some of the problems, possibilities and dangers of the current process of change.

More than just a Film: The “New Man” and Mechanisms of Exclusion in “Strawberry and Chocolate” An essential element of the Cuban revolutionary project was the creation of el hombre nuevo, the “new man”. The “new man” should be another type of citizen, a new kind of national (and international) subject free from the egoism, consumerism and other weaknesses of capitalist society.16 Without doubt, the project of creating a new human being was most explicitly a part of the

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Gustafsson, 2012. Guevara, Ernesto, “Che,” Obras escogidas. Gallimard, Paris 1967.

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revolutionary discourse the late 1960s and the 1970s, while it later seemed to be a more tacit idea of the future human and national subject. The theme of the “new man”, together with the problems of exclusion and repression, are central in one of the most significant films filmed and produced in revolutionary Cuba, namely Fresa y Chocolate (“Strawberry and Chocolate”) from 1993, directed by Tomás Gutiérrez Alea (1928-1996) and Juan Carlos Tabío (1942-). The film is based on a short story by Senel Paz titled: El lobo, el bosque y el hombre nuevo (The Wolf, The Wood and the New Man). The film portrays the relation between two men; one is a young and convinced revolutionary, member of the Communist Youth, and a student at Havana’s University. The other is a little older, homosexual, religious, very critical of the regime and its repressive practices, but also a Cuban nationalist and a great enthusiast of the country’s cultural heritage of music, literature and painting, far beyond the idea of revolutionary art or salsa for tourists. How these two men become friends and potential allies for a better Cuba on the basis of shared premises, can be interpreted as a call for reconciliation, and to some critics the aim of the film is to depict and criticize repressive practices of the past, but also to imply that such practices belong to the past rather than the present or future.17 What also seems to have been central in the discussion of the film has been its focus on discrimination of gays, and indeed this subject is important in the film, as it has also been a central point in official and semiofficial self-criticism later, and still is.18 Furthermore, some academic analyses tend to see the film and the accepted level of criticism as an expression of how the regime and the censorship do not simply try to avoid any criticism, but rather to control it and use it as a strategic political resource.19 Enrico M. Santi analyzes the element of reconciliation between the two protagonists as being consistent with the regime’s strategy to win over allies inside, and especially outside, the country in a situation of dramatic economic crisis – the so-called “Special Period” – originated by the loss of the Soviet Union and

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Diana R. Soles, “Administración de la crítica: tácticas de censores y cineastas cubanos en los noventa.” In: Tinajero, Araceli (ed.): Cultura y letras cubanas en el siglo XXI. Iberoamericana/Verwuert, Madrid 2010. This becomes obvious by the fact that Mariela Castro, daughter of Raúl Castro, has been appointed as the director of the National Center for Sexual Education in Cuba and appears in public inside and outside the country discussing problems of sexual education and, very often, criticizing homophobic attitudes, including former practices of the revolutionary regime. Soles, 2010.

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other members of CMEA (Council for Mutual Economic Assistance), Cuba’s traditional political and economic allies.20 Without doubt, these arguments and analyses are highly relevant; after all the film was made in Cuba and shown in the country’s theaters, and Cuba was in the early and mid-1990s in a desperate economic situation, and the regime’s imminent end was constantly predicted by analysts as well as common people.21 But such analyses, however, tend to focus on a rather limited dimension of the film and its context and do not take into account some logical consequences of a more complete interpretation of some of the film’s elements. The insistence on the film’s portrayal of discrimination of homosexuals, for instance, has seemed to obliterate some further and more general dimensions of its criticism of repressive practices in Cuba. Diego, the gay and religious intellectual, is critical of much more than just the exclusion and repression of gay and religious people. He becomes a kind of very rational voice of bad conscience of a political and ideological project based on a nationalist utopia that has become intolerant, repressive and incapable of living up to its own nationalist ideals. “They are letting it fall to pieces,” he says while looking at a Havana in very bad conditions. He does not represent the stereotypical antisocial or anti-revolutionary person, but someone who loves his country and wishes to stay and work there. And such a desire becomes more and more difficult for him to fulfill, due to his open and critical attitude towards the official discourse on arts and on society, and his unwillingness to repeat the routine ideological discourse and attitudes of the revolutionary “new man”. He becomes socially isolated, can hardly get a work and is, toward the end of the film, forced into exile. In this sense, the film’s critical scope reaches beyond a specific discussion on the homophobic tendencies of the Revolution and points toward the more general problem of the citizen’s rights. In Strawberry and Chocolate, rights are still depicted as something based on a specific idea and a given discourse of the “right” kind of Cuban, even if this definition has changed and earlier practices of discrimination (based on religion or sexual orientation) are being abandoned. Diego is not a “dissident” and does not define himself as such. He is not, at least in the beginning of the movie, a 20

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Enrico M. Santi, “Fresa y Chocolate: The Rhetoric of Cuban Reconciliation.” ICCAS Occasional Paper Series, May 2001. Link: http://www6.miami.edu/iccas/STRAW.pdf Downloaded: December 12, 2012. Carmelo Mesa-Lago, “Economic and Ideological Cycles in Cuba. Policy and Performance, 1959-2002.” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004; José A. Moreno, “From Capitalist to Socialist Culture, and Back to Capitalist Values?” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004.

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victim of overt repressive practices either. But his project of being a Cuban on his own conditions, as a loyal, but not revolutionary citizen, and less a “new man”, whose ideological, cultural and political ideas differ from the regime’s, cannot be successful. And if the story is read as an “exemplary” narrative of revolutionary Cuba, such possibility does not exist on the general social level, and that would mean that the film’s criticism goes beyond the more specific questions of certain repressive practices of the first decades of the Revolution. Much more than a criticism of specific homophobic practices and attitudes, the film depicts – in this more radical, but I believe justified interpretation – the difficulty, or rather impossibility, of a “difference within”. Diego’s project implies a personal, human, and cultural position that differs fundamentally with the ideal type and image of the “New Man”. Diego represents a human and Cuban subject who is not the “subject of rights”, because he is not accepted as being “within the Revolution”. But he is not “against” either, as Diego claims nothing but his own right to exist within the national territory and the discursive space of the Cuban nation on his own terms. However, the official discourse and political practices do not permit such a position, and therefore Diego is marginalized and forced out of the national symbolic and actual space. First, he is accused of being not a “real” or not sufficiently Cuban, then a counter-revolutionary and, finally, he is forced to leave the country. The exile might be his own decision, but he sees no future for himself or for his intellectual work in his beloved country. ”Strawberry and Chocolate” was filmed and produced in Cuba and was also shown with great success in Cuban theaters. It won a number of prices, including the prestigious First Coral Price for best New Latin American film at the International Havana Festival of New Latin American Cinema in 1993. For several reasons, including its director (Gutiérrez Alea, the most acclaimed Cuban film director, considered part of the nomenklatura), its success inside and outside the country, as well as its content and context, “Strawberry and Chocolate” is not just any film, and its importance, also political and in relation to the problem of human rights, should not be underestimated. As said, Gutiérrez Alea is probably the most important Cuban film director of all time. He was also, at least officially, loyal to the Revolution and part of Cuba’s cultural establishment. But he is also one of the revolutionary period’s most critical directors and he managed better than most to maintain elements of criticism and stay “within” the Revolution. Fresa y chocolate had a huge success in Cuban theatres and created, on a popular and informal level, a kind of national debate on homosexuality, homophobia, intolerance and even the

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regime’s repressive practices.22 Although this debate did not then reach the media or the official discourse (as it did years later), the film became a massive phenomenon and the debates it arose reached far beyond the number of spectators. Part of the film’s content has already been discussed here, but it should be stressed that the dialogues between Diego and David, the two protagonists, were much more critical and explicit than what had been seen until then in Cuban cinema. These dialogues, although quite natural and aesthetically functional, point at very fundamental problems of the person’s rights, on repressive practices and failures of the regime, known and acknowledged tacitly by most Cubans, but seldom discussed publicly. This means that the film’s argument represents something more than a simple case of two persons; it rather seems to be an archetypical or exemplary representation of a series of fundamental problems of Cuban society, discussed in a public media in a way not seen since the 1960s. The film was tolerated by the censorship and authorities, probably because it could be interpreted as a criticism of past practices now overcome by the constant process of auto-criticism that the film in itself would be part of, as suggested by Soles.23 To support this interpretation of Fresa y Chocolate as a film depicting and criticizing a period of the past, there is a scene showing David as he watches a news movie about Nicaragua and the Sandinista victory, which would indicate that the action of the film takes place in 1979 or 1980. This idea of Fresa as part of a process of settling the scores with abject practices that did not really belong to the Revolution is consistent with a comment made by David in one of his discussions with Diego, in which the latter criticizes and the former defends the Revolution: “Those things [errors like the persecution of homosexuals] are the part of the Revolution that is not a part of the Revolution” (my translation). In this sense, there is a perfectly possible interpretation of the film, according to which it is not only acceptable, but useful to Cuba’s authorities. Even the very fact that such a film is possible, would imply an open-minded and tolerant regime, eager for justice and for correcting its own faults. There is probably no doubt that this was the intended reading by authorities. But this interpretation, whether by the authorities or the critics and academics, fails to take into account two important factors, one contextual and the other a central element of the film itself. To begin with the latter, the exact moment of the action in Fresa y chocolate, and therefore also the specific scope and reach of its criticism, is rather 22 23

Soles, 2010. Soles, 2010.

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ambiguous. As indicated above, a certain detail would indicate the moment of the action to be 1979 or 1980. There are, however, no specific elements of stage design to support (nor contradict) this idea. Havana did not change very much from around 1980 to the early 1990s, and the relatively few cars seen in the film are mostly Ladas, which looked just the same for a long period, or pre-revolutionary American or European cars. But there is a puzzling element that seems to deny, or at least defy, a strict understanding of the film as being about the past: In a certain moment, David sees a group of people trying to force a pig upstairs in the building where Diego lives, located somewhere in Central Havana. The scene is an isolated background element with no connection to the general argument and it probably seems quite meaningless to a common, non-Cuban, spectator. But for any Cuban at the moment, this element made perfect sense: The early and mid-1990s were the so-called “Special Period” (cf. above), characterized by extreme scarcity and almost starvation. Among the solutions for food or money invented by common Cubans was the practice of breeding pigs in city flats, most often in the bathtub. It is quite unlikely that a professional film director like Gutiérrez Alea, cautious about scenography as well as about acting and argument, would permit a background scene of a huge pig being dragged upstairs in the big city as a pure element of decoration or folklore. The objective is clearly something else, namely to indicate that although the film could be taking place in 1979, its message is contemporary and about the Cuba of the moment, not (only) of the past. And that would be – and was indeed – the reading of the common spectator, which leads to the first of the two factors that speak against a narrow reading of the criticism of Fresa y chocolate. Regardless of the mentioned details indicating the moment of the action, the film was, for the common Cuban public, a kind of “shock of openness”, a sudden possibility of discussing something far beyond more specific historic events of the first decades of the Revolution, namely basic dimensions of the regime’s ideological and political ground and its practices of liberties and human rights. And furthermore, this happened in a situation of profound economic, and to some extent also political and ideological crisis. The importance of the film is, thus, not so much a question of its role and position within an official and semi-official political discourse of human rights and their violation; rather, the film marks a moment of a first public rupture with a hegemonic discourse on what it is to be a “good Cuban” and engages in a demythification of the discourse and myth of the “new man”. “Strawberry and Chocolate” is not simply a work of art and not just an interpretation of Cuba’s political and social reality. The film is, rather, part of a process of political and social opening and self-scrutiny taking place in the

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early and mid-1990s and later. It is also, though, a testimony of the limits of such process. Fresa y chocolate was tolerated, it was shown in theaters during a short period, and it even nurtured hopes of more profound changes. Such changes did not take place, at least not in a way some would have hoped and imagined.24 But it did contribute to pave the way for a much freer cultural scene and, even more important, it marked the beginning – although not the end – of a crisis for a hegemonic discourse on being “within” and “outside”, as initiated by Fidel Castro’s speech to the intellectuals in 1961.

Later Developments and Challenges to the Constituting Dichotomy It is, obviously, impossible to indicate exactly when the national-revolutionary discourse began to lose hegemony. A number of internal and external factors of political, economic, social and cultural character played their role. Time, in itself, is an evident factor: any hegemonic political discourse will face a process of erosion, as has the Cuban national-revolutionary discourse.25 Other factors are the already mentioned economic and social crisis of the early 1990s, the massive escape from the country by the balseros (rafters), the legalization of the dollar in 1993 as well as changes in attitudes toward arts, music, religion and other cultural phenomena.26 Most of these changes happened in the 1990s, and this decade marked, indeed, important changes in Cuba, including a more open economy in which big Spanish, Brazilian, Middle Eastern and other enterprises came to play an important role in different economic sectors, including tourism.27 However, the 1990s did not bring important changes in the country’s political system or toward the regime’s fundamental ideas of rights such as freedom of speech and expression. The period of the late 1990s and the early 2000s (until 2006, when Fidel Castro became seriously ill and could not fulfill his functions as leader of the state) even seemed to give new stability and solidness to a regime, whose fall had been predicted so many times since the fall of the Berlin Wall, the Soviet Union, and the socialist block of Eastern Europe. The improved relations with a number of countries, especially in Latin America, also contributed to a stabi24 25 26 27

Ivan de la Nuez, La balsa perpetua – soledad y conexiones de la cultura cubana. Editorial Cassiopeia, Barcelona 1998. Gustafsson, 2012. Mesa-Lago, 2004. Mesa-Lago, 2004; Moreno, 2004.

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lizing effect for the country’s economic and political situation. A very particular role was played by the Venezuelan president, Hugo Chávez, who took over power after winning the elections of 1999. Venezuela, under Chávez, became Cuba’s new strategic ally, in a somewhat similar way as the Soviet Union had been until around 1990.28 Venezuela provided Cuba with oil and other products at very favorable conditions, and a broad exchange of commodities and services began to take place, often without the use of hard currency. Besides the very special relationship with Venezuela (which later developed into the ALBA association of a number of Latin American and Caribbean states), a growing number of South American countries gave relations with Cuba – economic and political – higher priority and tended to disregard the USA’s attitude toward the country. The result was that Cuba became much less isolated in the Western Hemisphere than earlier. The so-called “left wave” that hit South American politics in the first decade of the 2000s, contributed to this. Rather than a “pariah” or obsolete “left-over” from the Cold War, Cuba has for years been considered culturally, politically, economically and diplomatically an integrated part of Latin America and the Caribbean. This, on one hand, could lead to a de facto accept of the Cuban government’s and leadership’s attitude toward human rights, which, to some extent, is the case. On the other hand, the growing number of contacts on different levels and of different kinds with the rest of Latin America (as well as other countries) has also contributed to the aforementioned more liberal attitudes to religion, sexuality and other cultural phenomena. Cuban society has, in the latest couple of decades, become more open, tolerant and well informed, also for the common citizens. While rather direct criticism began to appear as an accepted part of arts and music, and very present in some rap groups like the Aldeanos and others, the growing tolerance did not include actual and explicit political dissent. Different individuals or small groups of dissidents who chose to stay in the country conquered certain platforms in foreign media, which in some way or another could transcend to Cuba. This would include some catholic groups, groups or individuals dedicated to independent journalism, and declared dissidents like Vladimiro Roca, Orlando Biscet, and Orlando Zapata Tamayo, who died in prison in February 2010, after a prolonged hunger strike. The rather small and dispersed dissident movement, however, has not been able to play a significant and coherent political

28

Archibald Ritter, “The Cuban Economy in the Twenty-first Century. Recuperation or Relapse?” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004.

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role inside Cuba, and its primary role and influence generally is through foreign media. The technological development, on the other hand, has favored the expression of dissenting voices in the country. Although the Cuban government tries to control the general population’s access to the Internet, an increasing number of blogs and social media located inside, as well as outside Cuban territory express critical attitudes toward the government, the political leadership or some aspects of Cuban society. For a number of reasons, these blogs constitute an interesting development and a challenge for the revolutionary leadership. Most importantly, they defy the essential dichotomy of “inside/ for” and “against/outside” in its content and in its sense of space and territoriality. Many Cuban blogs and bloggers are critical of Cuban reality without wanting to be defined neither as “pro” nor “counter” revolutionary. Therefore, they do not only challenge the censorship and control over the written and published word, they also challenge the foundational discursive dichotomy of being on one side or another. Besides, although obviously the whole idea of being “inside vs against/outside” has abstract spatial implications, it is firmly rooted in an idea of national territoriality, and so is the notion of rights and non-rights linked to it. This means that the Cuban Revolution and its power has jurisdiction and control of rights within Cuban national territory, and every individual subject within this territory is subject (in any sense of the word) to the laws and rules formulated for this context. And, as argued, the consequence of a violation of these principles is some kind of repression, and potentially, prison or exile. The exile is, for the Cuban subject, the definitive “outside” as a result of being “against” (or at least not sufficiently “inside”, as in the case of Diego in Fresa y chocolate). For the revolutionary authorities, the exile community was part of a convenient and almost necessary discursive and political logic. It constituted – together with the US government (and more generally, “imperialism”) – the “enemy” of the Revolution, who belonged outside the national territory and against whom this territory and sovereignty should be defended. But the virtual space of the blogs is much more difficult to determine. Not only can it be difficult to know where a blogger and her or his computer are located physically, but the whole notion of national space becomes difficult to manage. Computers, blogs and bloggers can be situated anywhere in the world, Cuban territory included, but they all claim to be Cuban. Some are pro-government, some are declared dissidents, and some claim not to have a political position, but the right to express their opinions. And they engage in a dialogue – sometimes friendly and conciliatory, sometimes hostile – over which the government has very limited control, if any. So, the whole notion of a “real”, revolutionary and authentic Cuban nation ideologi-

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cally and physically “within” (Cuban territory), and the “false”, counterrevolutionary community “outside” (and “against”) is being challenged. On the other hand, the history of the most well-known of these bloggers, the young Yoani Sánchez, who has received several international prices in Spain, Denmark, Brazil and other countries, also shows some limits to this process. Several times Yoani Sánchez has been negated a visa to leave the country in order to receive a granted price. She has also been victim of provocations or physical aggression by presumed members of the security forces or citizens sympathizing with the government. At the same time, her own political development seems to have developed from a politically rather neutral, yet critical, position toward daily life and political administration in the country, to an explicit dissident position. This fact, however, in a certain way has made her a more comfortable opponent for the government. She is not any more a “common Cuban” who openly criticizes obvious negative phenomena from a position “within”, but has become – even if she is still located physically inside the country – one of “them”, that is, a “dissident” opposed to the government, the Revolution and, therefore also to the “nation”. The fact that her political dissent has made her relatively wealthy, can contribute to isolate her – and similar figures – from the lives and imaginaries of the general Cuban citizen. The bloggers are part of a relatively new and much more transnational Cuba. The growingly transnational character of Cuban society affects many aspects of social life, including economy, arts and literature,29 as well as the daily life many people. Besides the fact that Cuban society has in itself become more open towards the rest of the world, the character and size of the emigration waves of the last two decades has been another decisive factor.30 This means that, compared to the first three decades, or more, of the revolutionary period, the Cubans who reside on the island tend to have much broader cultural, economic and personal contact with the world “outside”. The access to international news and culture, including music, film and literature is much broader than before, especially for those who can afford to spend convertible currency on such products. Economically, the importance of capitalist foreign investment has been growing,31 but for the common Cuban the most important aspect of the more globalized economy resides in the 29 30

31

Natania Remba, Surrounded by Water: Expressions of Freedom and Isolation in Contemporary Cuban Art. Boston University Art Gallery, Boston 2010. Eckstein, Susan and Lorena Barberia, “Grounding Immigrant Generations in History: Cuban Americans and Their Transnational Ties.” The International Immigration Review; (36) 3, Fall 2002; Gustafsson 2012a. Mesa-Lago, 2004.

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increasing amount of remittances received from emigrated family members and friends.32 The increasingly transnational character of Cuban society implies necessarily that the hegemony of the dichotomy discourse is weakened. It is much more difficult to accept a dichotomy of “inside” and “against/outside” for people who are in more or less constant contact with cultural and other influences from outside the country, especially if this contact includes communication with friends and family. The growingly transnational character of Cuban society is, thus, becoming another essential factor in an evolution of the social and political climate in Cuba that tends to weaken the hegemony of the discourse of power that has dominated notions of nationhood and subjectivity for decades, especially from around 1960 to 1990, and still maintaining a relatively hegemonic position in the following two decades. Challenges against the dominant political discourse are, of course, not only a phenomenon of the latest two decades. During the whole revolutionary period, the hegemonic discourse has been challenged by opposing discourses on Cuban politics, nation and subjectivity. But these opposing discourses have not been able to constitute a serious threat to the hegemonic position of revolutionary discourse. This is the case, partly because such alternative discourses have never been allowed an actual space in the country – neither through the media or other ways of dissemination – but also because the opposing discourses typically ended up, willingly or not, playing the “inside-against/outside” game in a way that always has ended up confirming the basic premises of the dominant discourse.33 The dominant discourse of the anti-Castro elite in Florida is, obviously, the clearest expression of this situation, but a major rhetorical strategy of the dominant revolutionary discourse has always been, and still is, to accuse any opposing or dissident political discourse of being “against the Revolution” and thus, “anti-Cuban” and an “ally of imperialism.” But what is a relatively new and changing situation of discursive hegemony in revolutionary Cuba is that since the early 1990s, and with renewed force since the beginning of Raúl Castro’s reform process in 2009, a growing number of alternative discourses, practices and spaces seem to be opening up and challenging the hegemonic ideas of politics and nation. These challenges most generally can be seen as “alternative”, rather than “opposing”. Such tendencies include new forms and contents of expression in arts, music, cinema 32

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Lisandro Pérez,“La comunidad emigrada cubana y el futuro de Cuba.” In: Marifeli Pérez-Stable (ed.), Cuba en el siglo XXI. Ensayos sobre la transición. Editorial Colibrí, Madrid 2006; Eckstein and Barberia, 2002. Gustafsson, 2012.

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and literature, the aforementioned bloggers, and also the creation of a private economic sector of microenterprises instigated by the government. Until now, however, no generalized and coherent alternative discourse of politics or of the nation seems to have been a possibility. With this, I do not refer simply to the (obvious) lack of an actual political alternative to the existing power and its discourse,34 but also to the fact that the alternative spaces and expressions seem to strive for a relative and limited, but nevertheless essential, autonomy vis-à-vis the traditional and dominant revolutionary discourse and practices, rather than advocate for more general and profound changes, whether in culture, economy or politics.

The Question of Transition, Memory and Human Rights The Raúl Castro administration generally denies that Cuba is in a process of “transition”, while admitting that a fundamental process of reforms and changes are taking place. The character, depth, and extent of the process will show whether or not the term “transition” is the most adequate. But there is no doubt that the Cuban society of the second decade of the 21st century is very different from that of the last decades of the 20th century. The culture, the economy and the people have changed profoundly. Processes of deep social changes, and in particular the end of “state-sponsored political repression” often involve questions of memory.35 Cuba is, in this sense, not comparable to the military dictatorships in South or Central America or the 1970s and 1980s, not because of the Cuban regime’s political orientation – left and not right – but due to the very different origins and means of the Cuban revolutionary regime. The Cuban revolutionary regime did seize power with violent means, but not through a military coup and not for the purpose of securing the elite’s economic and political power. And, although the revolutionary government never permitted a plural political system, for which reason it is difficult to measure its popularity, one cannot simply assume that the regime would have a majority against it. Judgments on the Cuban regime’s popularity are very difficult to make, as polls generally are not permitted. To claim, on the other hand, that the regime’s capacity of mass mobilization, or the high level of participation in mass organizations 34 35

Gustafsson, 2012. Elisabeth Jelin, “Public Memorialization in Perspective: Truth, Justice and Memory of Past Repression in the Southern Cone of South America.” The International Journal of Transitional Justice, Vol 1, 2007, 138-156.

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and in elections, is an unmistakable sign of high popularity (up to 80 or 90 pct., if based on participation in general elections), would be equally wrong. Even the hypothetic case of a general poll measuring the regime’s popularity would not be able to account for the consequences of the complex and subtle mechanisms of power discussed above, which characterize the Cuban regime. The discursive dichotomy, the identification of “Revolution” with “nation” and “people”, mechanisms of social pressure as well as double consciousness, are all mechanisms or consequences of the revolutionary power system, which makes it a very complex task to try to evaluate the regime’s popularity. The contradictions are not simply between a more or less repressive government and its victims; they are also within the subject and citizen herself. Therefore, the question of memory is, and will be, even more complex that it is in most other cases, including both Latin America and Eastern Europe. In the Cuban case, it will be more difficult to establish a clear narrative of guilt and victimization, than in most other cases of post-transitional memory. This complexity could, on the other hand, also be seen as a future positive resource: If it is difficult to establish clear demarcation lines between the guilty and the non-guilty, between repressors and victims, and between good and bad, it is also possible to imagine a less divided future Cuba. There will be memory of repression and of violations of rights, but also of a regime that, at least in some periods, seemed to benefit from popular support. The transnational problem, and especially the role of the Cuban community in the US, will add further complexity to the question.

Conclusions The main discussion of this chapter has been the problem of the understanding of human rights in the context of revolutionary Cuba. This understanding is closely related to two major questions of subjectivity, which are closely interrelated: One is the particular idea of the “Revolution” as the authentic manifestation of the Cuban nation and, as such, the “grand” subject of rights. The other is the problem of being “inside/for” or “against/outside” this nationRevolution. This combined phenomenon creates a series of mechanisms of inclusion and exclusion that range from manifest repressive practices – mostly of social exclusion and loss of certain privileges and prestige, but also including loss of freedom and, in some cases, physical aggression – to the individual citizen’s own interiorization and accept of the discourse of power and its premises. The ultimate form of exclusion is the exile, which is not simply abandoning the national territory, but the subject’s recognition of, or

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resignation to, the impossibility of being “inside”. The film analyzed, Fresa y chocolate, constitutes a particular and valuable case for studying some of these mechanisms, due to its content and to its context. To understand these mechanisms and their importance for the revolutionary period is essential for understanding human rights in Cuba in a broader perspective. It is, however, also important to acknowledge that the Cuban political model, for several reasons, is undergoing a crisis of which the final outcome is still to be seen. Among the most important of these reasons are: First, the slow, but secure, erosion of the hegemonic power discourse.36 Second, the series of social, economic and cultural changes that Cuban society has undergone since around 1990, including the loss of the traditional political and economic allies, the growing “dollarization” (since 1993), the increasing transnational dimension of common Cubans’ lives and economy, and the possibility of creating new alternative cultural spaces not any longer condemned as “anti-revolutionary” or “anti-Cuban” (especially in religion, as well as arts, music and other artistic manifestations). After a period of renewed stability and attempts to regain the hegemony of the more traditional revolutionary discourse of power in the late 1990s and first years of the 2000s, Fidel Castro’s illness in 2006 and his brother’s definitive take-over of power by 2008-2009, the regime itself has initiated a period of economic reforms more radical than any other since the early 1960s. This process implies a much more liberal understanding of the socialist economy and, in particular, that microenterprises will become a cornerstone of Cuba’s economic fundament. This will imply that the idea of the “new man”, the authentic revolutionary and socialist subject, will be substituted, at least partially and in common practice, by a very different kind of human subject, a kind of Cuban homo faber, or self-made (wo)man engaged in small scale capitalism, and whose original sources of investment might be remittances received from abroad. These multiple changes make it difficult to sustain a hegemonic discourse based on revolutionary mysticism and on infallible distinctions between who is the “right” citizen and who is not. In these circumstances it will be difficult to maintain Fidel Castro’s foundational idea from 1961, according to which the Revolution has a first right to existence and to defend itself from any attack, including critical attitudes by its citizens. On the other hand, there are no clear signs of fundamental changes of Cuba’s political system, and, as discussed, visible human rights practices show no clear direction, as there are signs of improvement along with signs of ongoing violations, often not committed, at least formally, by state actors, but by civil supporters of the Revolution. 36

Gustafsson, 2012.

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Whichever the final outcomes of the processes of economic, social, cultural and, eventually, political, changes that became most manifest from around 2009, it seems unquestionable that Cuba is becoming a much more diverse society than it was during the first four decades of the revolutionary period. The monolithic idea of the “right” kind of (revolutionary) citizen is being contested implicitly or explicitly from the most diverse social dimensions – economy, culture, alternative media, transnational practices etc. – and by diverse actors, such as bloggers, small scale capitalists, dissidents, artists, emigrants and, very importantly, from the regime itself, especially due to its economic reforms, but also through the recognition of liberty of cults and of the Catholic Church (and other religious societies) as actual social actors to be recognized as such, as well as the recognition of an exile community of Cubans who are not per se “enemies of the Revolution.” These changes and the future perspectives for Cuba do, even in the most positive light, raise a number of important questions regarding, directly or indirectly, the practices and perceptions of human rights. The necessity to overcome current and past repressive practices, the question of a one-party system and of permitting a plural political system are some of them. And, as discussed above, the perspectives of profound changes in Cuba also implies a question of memory. Whichever interpretation one has of the revolutionary regime in Cuba, the future will face the question of a memory of this period, and this regime’s subtle mechanisms of power and subjectivation will also create, and is already creating, not only conflicting, but extremely complex social memories.

Literature and References Anderson, Benedict, Imagined Communities. London 1983. Castro, Fidel, Obras Escogidas, Tomo I. Editorial Fundamentos. Madrid 1976. Du Bois, W. E. B., The Soul of Black Folks. [1903] Penguin Books, New York 1996. Eckstein, Susan and Lorena Barberia, “Grounding Immigrant Generations in History: Cuban Americans and Their Transnational Ties.” The International Immigration Review; (36) 3, Fall 2002. Goffman, Erving, Stigma: Notes on the Management of Spoiled Identity. Simon and Schuster, New York 1963. Guevara, Ernesto, “Che,” Obras escogidas. Gallimard, Paris 1967. Gustafsson, Jan, “Mellem jegets tomhed og diskursens ubærlige tyngde. Subjektivitet og interpellation i ’Minder fra underudviklingen’”. In: Inge Degn, Jan Gustafsson and Ken Henriksen (eds.), Subjektivitet, sprog og erfaring i en transkulturel kontekst – Otte bud på en socialhumanistisk forskning. Aalborg Universitetsforlag, Aalborg 2005.

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Gustafsson, Jan, “The Nation and the Revolution – Techniques of Power and Interpellation in Revolutionary Cuba.” In: Niels Bjerre-Poulsen, Helene Balskev Clausen and Jan Gustafsson (eds.), Projections of Power in the Americas. Routledge, New York 2012. Gustafsson, Jan, “Cuba, Miami and the Question of a Transnational Space.” In Anders Olsson and Ken Henriksen (eds.), American Studies in Scandinavia, vol. 43, 2, 2012a. Jelin, Elisabeth, “Public Memorialization in Perspective: Truth, Justice and Memory of Past Repression in the Southern Cone of South America.” The International Journal of Transitional Justice, Vol 1, 2007, 138-156. Laclau, Ernesto, and Chantal Mouffe, Hegemony and Socialist Strategy. Towards a Radical Socialist Politics. Verso, London 1985. Laclau, Ernesto, On Populist Reason. Verso, London 2005. Leclercq, Cécile, El lagarto en busca de una identidad. Madrid, Vervuert Iberoamericana, Madrid 2004. Mesa-Lago, Carmelo, “Economic and Ideological Cycles in Cuba. Policy and Performance, 1959-2002.” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004. Moreno, José A., “From Capitalist to Socialist Culture, and Back to Capitalist Values?” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004. Nuez, Iván de la, La balsa perpetua – soledad y conexiones de la cultura cubana. Editorial Cassiopeia, Barcelona 1998. Pérez, Lisandro, “La comunidad emigrada cubana y el futuro de Cuba.” In: Marifeli Pérez-Stable (ed.), Cuba en el siglo XXI. Ensayos sobre la transición. Editorial Colibrí, Madrid 2006. Pérez-López, Jorge 2006: Una estrategia para una transición económica cubana. In: Pérez-Stable, Marifeli (ed.): Cuba en el siglo XXI. Ensayos sobre la transición. Editorial Colibrí, Madrid. Remba, Natania, Surrounded by Water: Expressions of Freedom and Isolation in Contemporary Cuban Art. Boston University Art Gallery, Boston 2010. Ritter, Archibald, “The Cuban Economy in the Twenty-first Century. Recuperation or Relapse?” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004. Rojas, Rafael, “Ideología, cultura y memoria. Dilemas simbólicos de la transición.” In: Marifeli Pérez-Stable (ed.), Cuba en el siglo XXI. Ensayos sobre la transición. Editorial Colibrí, Madrid 2006. Rowe, Nicholas and Ana Julia Yanes Faya, “Cuban Monetary Policy. Peso, Dollar or Euro?” In: Archibald Ritter (ed.), The Cuban Economy. University of Pittsburg Press, Pittsburg 2004.

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Santi, Enrico M., “Fresa y Chocolate: The Rhetoric of Cuban Reconciliation.” ICCAS Occasional Paper Series, May 2001. Link: http://www6.miami.edu/iccas/STRAW. pdf Downloaded: December 12, 2012. Skidmore, Thomas, Modern Latin America. Oxford University Press, New York 2005. Soles, Diana R., “Administración de la crítica: tácticas de censores y cineastas cubanos en los noventa.” In: Tinajero, Araceli (ed.): Cultura y letras cubanas en el siglo XXI. Iberoamericana/Verwuert, Madrid 2010.

chapter 10

The Latin American Spring: New Constitutions, Rights and Obligations? Annali Kristiansen1

Introduction In Latin America changes have come about in a period where participation has gained momentum and the formal establishment of democracy has become the norm rather than the exception. Characterized by extreme inequalities, the ethnically divided countries of Latin America face challenges in improving participation and the quality of democracy. In recent years, changes have been brought about in the way in which countries, their institutions and structures are defined and ruled and in the participation of new social actors. The insurgence of “non-western” patterns and movimientismo are some of the central factors that have led to the development of new constitutions that address human rights, inclusive processes and inter-culturality to a higher degree than previously seen. It is a trend that is particularly strong in the Andean countries. The aim of this chapter is to show the changes that have been initiated through constitutional reform processes in Bolivia and Ecuador in the past decade. It focuses on the word of the law in order to address formal changes both in terms of institutions, the pluri-national dimension and participation, and the right to water as a human right. While highly relevant, this chapter does not address the actual implementation of or the effect of these reforms as this would require extensive in-situ research and analysis. Moreover, it only makes reference to international human rights standards when relevant and does not address the Inter-American human rights standards directly. The Regional Context In recent years, 12 Latin American countries have through democratic elections turned their political course towards the left in a so-called “plural

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Thank you to Gonzalo Abad-Ortiz, FLACSO, for inspiration and critique.

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turn”.2 Some have taken a “mild and social democratic approach”, while others have taken a more radical and in their view a revolutionary approach. A mild approach has been taken by Brazil, Chile, Panama, Peru and Uruguay. In the middle are Argentina, El Salvador and Paraguay, while Bolivia, Ecuador, Nicaragua and Venezuela are among the most radical in their course to the left. Countries that have recently turned to the right include Guatemala, Honduras and Panama, whereas Colombia remains at, and Costa Rica appears to have turned to the centre right. The turn to the left is based on various degrees of promised change from addressing social concerns to re-founding of the nation as such. The different national processes indicate some common features, first and foremost the socially significant promise of “change” that has been put forward in countries that are very diverse in their set-up and development, from rural based to industrial export economies. The Roots of Change Several factors are behind the roots of change that are expressed by and through a wide variety of new social actors. These new social actors have appeared all over Latin America mainly as a result of high levels of inequality, an overwhelming urbanization, and migration in combination with limited inclusion. Institutionalized representation has proven to be inadequate and with the current social fabric, it appears that instability has become endemic. An exacerbation of structural fractures by neoliberal policies means that there is a need to address representation and institutions anew. The 2010 report Latinobarometro3 identified the challenge as moving forward from democratic elections to democratic governance in Latin America.4

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Latinobarómetro, Informe 2010, p. 51. The report is published annually by the NGO Corporación Latinbarometro that is based in Santiago, Chile. In 1995 it conducted its first field study that covered Argentina, Brazil, Chile, México, Paraguay, Peru, Uruguay and Venezuela. In 2010 it had carried out 15 studies with a total of 277,406 interviews. The 2010 study referred to in this chapter is based on 20,204 face to face interviews carried out between September 4 and October 6 in 18 countries in Latin America. The representative sample is 100 pct. of a national sample population of 1,000-1,200 persons per country, with an approximate error margin of 3 pct. Corporación Latinobarómetro, Informe 2010, p. 3. Latinobarómetro, Informe 2010, p.58

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There has also been an insurgence of non-western patterns and what is known as movimientismo.5 These patterns take their point of departure in the Latin American setting, where the ethnic dimension of indigenous peoples and afro descendants plays a major part. In addition to political parties, it is through the so-called re-discovery of citizenship that the social movements are at the centre of change.6 These movements have pushed for participation and have debated new structures, institutions and the role of the state. The spaces created for these movements to come together and to act are largely due to multi-cultural policies of participation, that have been promoted through policy and law, such as the law on Popular Participation that came into effect in Bolivia in 1995.7 It is particularly the indigenous peoples that sought to make use of these spaces. In addition to the social movements, viable parties emerged in Bolivia and Ecuador that are based on indigenous movements, thus gaining presence both at the local, municipal and national levels. Indeed, in 2004 a law was passed in Bolivia that allowed citizens groups and indigenous peoples to participate in local elections without registering as political parties.8

New Frameworks and Institutions The constitutions of Latin America have frequently been revised in the past both under authoritarian rules and even through Constituent Assemblies.9 In recent years the constitutional reform of institutions and frameworks has been undertaken by constituent assemblies that were apparently more inclusive than previously seen. Indeed, the movimientismo has been behind a call for participation of society at large in the political processes. Historically excluded, it is particularly the indigenous movement(s) that has worked for participation.10 5 6 7

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Hernán Ibarra, Visión histórica política de la Constitución del 2008, Centro Andino de Acción Popular, Quito 2010, p.83. Ibarra, 2010. In Ecuador, municipal decentralization and local initiative has promoted participatory budgeting and citizens oversight institutions in some municipalities, whereas they exist in all municipalities in Bolivia (Van Cott, p. 9). Van Cott, 2006, p. 8. Ibarra, 2010, p. 32 Consuelo Sanchez, “Autonomía, Estados plurietnicos y plurinacionales” in Raquel Z. Yrigoyen Fajargo (ed.), Pueblos indigenas, constituciones y reformas politicas en America latina. ILSA, INESC and IILS, Lima 2010, p. 97.

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In Bolivia, a Constituent Assembly was created in 2004 that in collaboration with the National Congress initiated the reform of the Constitution of Bolivia. After more than four years, this work was accomplished on January 25, 2009 when the Political Constitution of Bolivia was put to a referendum and approved.11 In Ecuador, the Constituent Assembly of Montecristi gathered in 2007 and its endeavour resulted in the draft Constitution of the Republic of Ecuador that was put to referendum and approved in 2008.12 It is especially in the conception of new Constituent Assemblies, constitutions and institutions that countries like Bolivia and Ecuador have redefined the frameworks within which governance and democratic processes are played out. The Constituent Assemblies may be perceived as political tools that both have historical roots and create contemporary processes and in a sense re-found the nation.

New Ideas, Institutions and Mandates Both Constitutions entail new ideas, institutions and distribution of power. The preamble of the Constitution of Bolivia outlines that it collectively constructs the unitary social state of pluri-national communitarian law. The unitary aspect implies that a number of areas or groups are joined together and are controlled by one government.13 The pluri-national communitarian law implies new values that on the one hand refer to the many indigenous nationalities of Bolivia and on the other to the indigenous values that take point of departure in the community. Ecuador is defined as a constitutional state of rights and justice, social, democratic, sovereign, independent, unitary, intercultural, pluri-national and secular.14 It is organised as a republic and it is governed in a decentralised manner. Moreover, “sovereignty rules the people, its will being the foundation of the authority, and it is exercised through the organs of public power and the forms of direct participation foreseen in the Constitution.” The non11 12 13 14

La Corte Nacional Electoral, Constitución Política del Estado de Bolivia, (Constitution of Bolivia), Sucre, Enero de 2009. El Consejo Nacional Electoral, Constitución de la Republica de Ecuador, (Constitution of Ecuador), Quito 2008. “Unitary” according to Oxford Advanced Learners Dictionary, 8th edition, Oxford University Press, 2010. Constitution of Ecuador, Art. 1

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renewable natural resources of the territory of the State belong to its heritage and they are inalienable, indispensable and cannot be seized.15 The new ideas or values outlined in both Constitutions thus build on a similar outlook on the role of government and the state and emphasis is clearly placed on the pluri-national dimension.16 In Bolivia, all state functions are defined as pluri-national. In addition to the classic separation of powers and functions of the legislative power,17 the executive power,18 and the judiciary,19 the judiciary also comprises an agro/ environmental tribunal that is elected by universal suffrage. Presided by the elected Vice President, the bicameral National Congress nominates and oversees most of the other organs. The role and responsibility of the Executive of Bolivia is highly detailed in the Constitution.20 In brief, it is a strong Executive that must constitute a pluri-national and gender balanced Cabinet, which can stay in power for five years and stand for re-election once.21 It is the highest authority in land reform and it must present a national development plan. The judiciary is both ordinary and indigenous. Ordinary justice refers to a formally established justice system as it would be known in Europe, whereas the indigenous system comprises various forms of justice systems.22 A Law of Jurisdictional Demarcation will determine boundaries of the indigenous with the ordinary justice, the agro/environmental and the constitutional jurisdictions. While the Supreme Court and the Constitutional Courts are elected by universal suffrage, there are specific pluri-national requirements to the composition of the Constitutional Court23 and the Electoral Organ.24 15 16 17 18 19 20 21 22

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Spanish to English translation of imprescriptible, inalienable e inembargable: indefeasible, inalienable and cannot be seized or embargoed. The correct name of Bolivia is the Plurinational Republic of Bolivia. Constitution of Bolivia. Second Part: structure and functional organization of the state. First title: Legislative organ. Constitution of Bolivia, Second title. Constitution of Bolivia, Third title. Constitution of Bolivia, Second title, chapter one. Constitution of Bolivia, First title, chapter one. For more information about the various forms of justice, please see the 2012 publication Informal justice systems: charting a course for human rights-based engagement that was drafted by the Danish Institute for Human Rights for UNDP, UNICEF and UNIFEM (now UN Women), (2012b). The Constitutional Court is balanced between indigenous members and others that are elected by universal suffrage for six years. Two out of the seven seats of the electoral organ are indigenous seats; moreover all seats are chosen by public contest and elected by Assembly. The reorganisation of the

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Finally, the autonomous regions are constitutional, territorial as well as indigenous. The Constitution outlines several institutions that control and monitor public administration, such as the Defensoría del Pueblo, or the Advocate of the People. Organized civil society is both mentioned as participating in public policy development and in the social control of public administration at all levels and in particular in regard to resource management and quality of public services.25 In addition, it is possible to carry out popular action against all acts or omissions by authorities, individuals or collectives that violate or threaten to violate any collective rights or interests in regard to heritage, security, the environment and similar aspects. Popular action does not require judicial or administrative processes and can be launched by the person who gains knowledge of the act or omission.26 In Ecuador, only the State is defined as pluri-national and inter-cultural. The Constitution creates various new functions, one of which is the “Function of Transparency and Social Control.” In brief, its purpose is to control and promote the control of the public sector and of private entities that provide public sector services. It is accountable for citizen participation, countering corruption and public policies. Its members represent the Council of Citizens Participation and Social Control,27 the General Comptroller of the State, Super Intendencies and the Advocate of the People.28 Its members are proposed by civil society and are selected through public contest for a period of five years.29 It appoints, through public contest, the Advocate of the People,30 the National Comptroller, the members of the Electoral Function, the Attorney General, and the Judicial Council. This function is innovative as it to some

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representative organs to include indigenous seats resulted in debate both regarding who should access these seats and how they should be accessed. Constitution of Bolivia. Second part, title VI. Constitution of Bolivia, Title IV, Chapter two, Section VI. For information about the Council: http://www.participaccionycontrolsocial.gob.ec/ (accessed on 12 October 2013). Constitution of Ecuador, Chapter 5. In fact the term “public contest” implies a public and transparent application procedure, whereby those interested apply for the post and undergo a selection procedure that is managed and decided by the Function of Transparency and Social Control. The Constitution of Ecuador, Art. 61 (7), describes the right of Ecuadorians to participate that also implies the right to undertake public employment and functions (Art. 65) through a process of application and designation , which is the “public contest”. In Spanish: La Defensoría del Pueblo de la República de Ecuador, that is the National Human Rights Institution of Ecuador.

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extent has a mandate that would typically lie with the elected representative of the people, the National Assembly, and it possibly provides a more direct representation of civil society. In 2011, it appointed the Commissioner and Deputy Commissioner of la Defensoría del Pueblo, or the Advocate of the People, through public contest. The National Assembly of Ecuador comprises 15 national, 109 provincial and six members among migrants. Through its four-year period, it monitors all other functions and can dismiss all high government officials and impeach the President; this however requires the calling of general elections. The Executive of Ecuador is very strong, its period is four years and reelection is possible once. It proposes a national development plan. It can dissolve the National Assembly once, if general elections are held. In addition to the entities that typically promote and protect human rights, such as la Defensoría del Pueblo mentioned above, the Executive leads a mixed government/civil society system of National Councils for Equality that are responsible for implementation of the rights outlined in the Constitution and in international human rights instruments. These councils appear inclusive as they address gender, ethnicity, generations, inter-culturality, disability and human mobility.31 A Judicial Council is selected by public contest and for a period of six years. It manages a system with a National Court of Justice, the members of which are selected through public contest for a period of nine years, the Judicial administration, the Attorney General and public defenders, and the notaries. The limits of indigenous justice in regard to this system remain to be identified. The Electoral Function comprises a Council and a Court, the members of which are appointed for six years.32 The Constitutional Court members are nominated by a mixed commission and through public contest for nine years. As with the Electoral Function, members are not allowed to pertain to political parties 10 years prior to appointment. The Constitutional Court both interprets the Constitution of Ecuador and human rights conventions and treaties. The institutions and mandates outlined in the constitutions provide complex domestic frameworks that promote and protect human rights, acknowledge participation and recognize the role of civil society. The law emphasizes 31

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Constitution of Ecuador, Art. 156 and 157. They are based on the earlier national councils on childhood and adolescence, disability, women, indigenous people and nationalities, afro-ecuadorians and montubios. Members are not allowed to pertain to political parties 10 years prior to appointment.

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the establishment of mechanisms that might involve citizens and civil society in democracy or in democratizing democracy. Indeed, in the case of Bolivia and Ecuador, almost all high level elected officials at the national level can have their mandates revoked by the legislature or civil society through a referendum.33 One could describe this as “a constitutional consequence” of emphasizing human rights and participation and it is an interesting new possibility in Latin America.

The New Contents of the Constitutions or Democratizing Democracy The Pluri-national Dimension Although the the pluri-cultural, the pluri-ethnic and intercultural aspects34 have been part of constitutional work since the 1980s,35 it is the concept of the pluri-national that has recently been introduced to constitutions. While some aspects of participation used to be regulated by law, the “constitutional confirmation of the pluri-national” is perceived as important progress in Latin America. The pluri-national dimension is part of re-founding the nation state, which in turn implies inter-culturality and post-coloniality.36 It is part of a social emancipatory process that seeks new forms of organisation and that in a democratic manner addresses old forms of dominance and racism.37 One such form of dominance is colonialism and the heritage of colonialism that may be seen in the structure of society and the high levels of inequality, another issue is the basis upon which the state is founded namely as a sole

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Constitution of Ecuador, Art. 61 (6). Pluri-cultural has been defined as the coexistence within the same political and social space of different cultures that are connected and in dialogue, whereas multi-cultural has been defined as various cultures that either share or do not share one space and are not connected. Inter-culturality is the result of the process of pluri-cultural, whereby the notion of co-operating cultures seek to live together in tolerance and hospitality. Inter-culturality is not an abstract notion, rather it takes places among the persons that live with these ideas (El Defensor del Pueblo de Bolivia, Interculturalidad y derecho, segunda ed, La Paz, marzo de 2008, p. 16-17). Alberto Acosta and Esperanza Martinez (eds.), Plurinacionalidad – democracia en la diversidad, Editorial Universidad Bolivariana, Santiago 2009c. Acosta and Martinez (eds.), 2009c, p. 37. Anibal Quijano, Descolonialidad del poder- el horizonte alternativo, in Acosta and Martinez (eds.), 2009c., p. 107

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nationality.38 A pluri-national state may comprise two or more or all nationalities of a country.39 One reason behind the debate on the pluri-national, also in relation to participation, is the party system crisis that began in the 1990s. This was when the indigenous people’s social movement organisations formed electorally viable political parties for the first time. According to Van Cott, “candidates emphasizing an ethnically indigenous identity, representing parties affiliated with indigenous social movement organisations, gained a foothold in national legislatures and control of local and subnational governments.”40 Consuelo Sanchez explains that the pluri-national state leaves behind the personification of one state as one nationality and that it rather attributes “equivalences” to all nationalities in question, regardless of their size or demographic composition.41 It is particularly the indigenous movement that has worked for broader participation, some to promote autonomy as nations in their own right and others to promote autonomy and participation within the nation state. It is the last mentioned that seeks to reformulate the terms of the relation with the existing nation state, to leave behind the single national identity (culture and values) and to introduce a diversity of nationalities or ethnicities,42 upon which the state and its institutions, values, politics and economy are modelled.43 Through a perspective of diversity and equality, participation and autonomy, the pluri-national dimension could thus provide a way of re-founding the nation. Participation and the Right to Participate From a human rights perspective participation goes beyond elections and the rights of the majority. It is about building a space and creating conditions where there is a possibility of free debate and the ability to express disagreement with decisions made by the State, where conflicts can be addressed and compromise or consensus can be sought. It is a mode of participation that 38 39 40 41 42

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Catherine Walsh, Estado Plurinacional e intercultural. Complementariedad y complicidad hacia el Buen Vivir, in Acosta and Martinez (eds.), 2009c., p. 164. Sanchez in Yrigoyen Fajargo (ed.), 2010, p. 94. Van Cott, 2006, p. 1. Sanchez in Yrigoyen Fajargo (ed.), 2010, p. 94. Read more about nationality, its development and use in José Antonio Lucero, “Locating the “Indian Problem”: Community, Nationality, and Contradiction in Ecuadorian Indigenous Politics,” Latin American Perspectives, Vol. 30, No. 1, 2003, p. 23-48. Sanchez in Yrigoyen Fajargo (ed.), 2010 p. 97.

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ensures the equal rights and dignity of fellow human beings and provides a mode of governance where those in minority are considered an equal part of the political community.44 According to Ulrik Spliid the elements required for public participation are as follows: 1. The existence of an enabling environment for public participation. This recognizes the necessity of open and responsive state institutions, a legal and policy framework conducive to participation as well as structures, procedures and opportunities that allow the public to engage in the conduct of public affairs. 2. Individual engagement and that everyone are aware of their rights and have the ability and opportunity to engage in their local context and address barriers to the enjoyment of their rights. 3. The existence of representative structures and an active civil society that can ensure the availability of information and mass communication on issues of public interest and allow the basis for collective action and dialogue vis-à-vis the state.45 According to Latinobarometro, only 53 pct. of citizens in Latin America believe that it is possible for their political ideas to reach (those in) power. There is a crisis in representation through political parties and in Bolivia and Ecuador an average of only 15% would seek to influence governmental decision through a political party.46 Multi-cultural reform in the 1990s helped create a genuine increase in the numbers of indigenous peoples that took part in local politics and decisionmaking, and in gaining foothold in processes of decision-making that affect their communities and the country.47 In recent years, some of the indigenous platforms promised that they would provide a more participatory and intercultural model of democracy. The Movement toward Socialism (MAS), an in44

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The right to participate in the conduct of public affairs is protected by Article 21 of the Universal Declaration on Human Rights (UDHR) and Article 25 of the International Covenant on Civil and Political Rights (ICCPR). The freedoms of expression, association and assembly are protected by UDHR (Articles 19 and 20) and ICCPR (Articles 19, 21 and 22). Ulrik Spliid, Issue paper: National Human Rights Institutions and Public Participation. Issue Paper. The Danish Institute for Human Rights, Copenhagen 2013. Latinobarómetro, Informe 2010, p. 62-63. John-Andrew Mcneish, “Constitutionalism in an Insurgent State: Rethinking Legal Empowerment of the Poor in a Divided Bolivia”, in Dan Banik: Rights and Legal Empowerment in Eradicating Poverty. Ashgate Publishers, Aldershot, Brookfield USA, Singapore and Sydney 2008, p. 85.

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digenous movement-based party in Bolivia, defined as a principle “to consider Bolivia to be a multi-national and pluri-cultural State integrated by living and existing together in mutual respect” and expressed “a commitment to the development of a Communitarian Democracy, of consensus and participation, of social and economic content. This democracy must contain political mechanisms that constitute channels for links between governments and public sectors”.48 The indigenous movement thus took the debate on representation to focus on participation and established a strong link between participation and the pluri-national dimension. In Bolivia and Ecuador there is a trend to empower the local, to focus on decentralization and to plan regional development schemes. According to Van Cott, it is also in the local municipal arena that movement-based indigenous political parties first gained ground and where the quality of democracy seems to have improved. Moreover, innovative and radical alternatives have emerged that challenge the prevailing values and institutions that have failed to provide conditions for meaningful citizenship.49 In both countries, the decline of political parties as intermediaries has meant that new methods have been introduced such as public contests as a method to choose or elect authorities, which provides a completely new setting for civil society associations to become actors of public decision-making. The constitutional creation of a new institution such as the Council of Transparency and Social Control (Ecuador), which has high responsibilities, implies the creation of such innovative modes of citizen intervention. It is participation – or the possibility to participate – that has increased and the “ethnic dimension” is the most apparent in the constitutions. In Bolivia, there is a predominance of a mandatory pluri-national character of all public institutions. The concept is similar in Ecuador, where significant emphasis has been placed on the rights of communities, peoples and nationalities, including social organization and authorities.50 In Ecuador, Art.61 outlines the rights of participation as mainly political rights as well as the new types of participation such as the right to revoke the mandate of those elected into power.51 48 49 50 51

Van Cott, 2006, p. 2. Van Cott, 2006, p. 3. Chapter four: the rights of communities (comunidades), peoples (pueblos) and nationalities (nacionalidades). Constitution of Ecuador, Chapter five: Participation rights, Art. 61, Ecuadorians, male and female, enjoy the following rights: the right to elect and stand for election, to participate in issues of public interest,

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Both constitutions give collective ownership of land a lawful stand and include a fundamental right to participate in the management of natural resources. While underscoring the role of the state it also appears that the public jurisdiction of indigenous customary law – the public authority of indigenous self-governing institutions to make and apply such norms or common practices, and the behind lying values have been recognized through these constitutions.52 At the same time these rights are limited or constrained by higher order constitutional rights and international human rights norms. Both constitutions formally provide a more enabling environment for participation. Moreover structures have been developed that could address issues of public interest, and the formal conditions for engaging in human rights have improved. Rights in the Constitutions of Bolivia and Ecuador In theory, the optimal protection for human rights is to insert a list of human rights guarantees into the constitution. This recognition at constitutional level ensures that all branches of government are bound by the rights in their to present project of popular normative initiative, to be consulted, to oversee the acts of the public power, to revoke the mandate that has been conferred to the authorities through popular election, to undertake public employment and functions on the basis of merits and capacities, and in a system of transparent selection and designation that is inclusive, equitable, plural and democratic, that guarantees his/her participation, with criteria of equity and gender parity, equality of opportunity for persons with a disability and intergenerational participation, to create parties and political movements and to freely affiliate oneself or not from these and to participate in all the decisions that they take.

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Foreigners may enjoy these rights in as much as they apply to them. Art. 62, (on the right to vote), Art. 63, (on the right to vote of Ecuadorians that live abroad), Art. 64, (on the suspension of political rights), Art. 65, The state promotes representation based on parity of women and men in regard to the nomination and designation to public functions, in directory and decisionmaking instances, and in political parties and movements. In candidatures of pluripersonal elections their alternate and sequential participation is respected. (Own translation). Van Cott, 2006, p. 13.

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actions, and that legislation shall respect these rights due to the hierarchal supremacy of the constitution.53 Public support for the human rights in the constitution can be fostered if their inclusion is a result of a participatory process and it is adopted through a national referendum. This goes hand in hand with the notion of a constitution as a binding legal document through which a society organizes a government for itself, defines and limits its powers, and prescribes the relations of its various organs inter se, and with the people. Nevertheless, there is no guarantee that the constitutional recognition of human rights leads to a reduction in human rights violations or provide more effective protection against human rights violations in practice. Lack of respect for the constitutional values, rights, and enforcement mechanisms may often go hand in hand with the presence of authoritarian regimes, absence of rule of law, lack of accountability, scarcity of resources and low public awareness about rights and duties.54 The importance given to rights in Bolivia and Ecuador is significant, 61 articles of the Bolivian and 73 articles of the Ecuadorian constitutions directly concern rights. They cover many issues and areas that concern civil and political, economic, social and cultural rights, as well as individual and collective rights, rights of indigenous people, of consumers, property and environmental rights. Both constitutions address the rights of persons and groups of priority attention and the right to participation as described earlier. In Ecuador the specific Rights of Nature are included, they include the respect for its existence, maintenance and regeneration apart from traditional environmental obligations. Nature has thus become a subject of rights. Living Well and the Right to Water In Bolivia and Ecuador, a new conception of social order has been adopted. “Sumac Kawsay” , good living or living well is a mainstream moral and ethical principle that implies an explicit non-western set of values centred in the respect of plural, diverse, equitable, dignified, participatory, transparent social order for a “good life” or “living well”. Living well is known as sumac kawsay in Ecuador and as suma qamana in Bolivia. According to some, living well is a means of collectively constructing a new type of development that is the

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The Danish Institute for Human Rights, The Constitutional Protection of Human Rights, Brief, The Danish Institute for Human Rights, Copenhagen 2012a, p. 7. The Danish Institute for Human Rights, 2012a.

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democratic construction of democracy.55 Living well comprises principles, rights and obligations. In Bolivia, the state assumes and promotes as ethical and moral principles of the plural society: ama qhilla, ama llulla, ama suwa (do not be lazy, a liar or a thief), suma qamana (living well), nandereko (harmonious life), teko kavi (good life), ivi maraei (earth/land without badness) and qhapaj nan (noble path or life). Moreover, the state is based on unity, equality, inclusion, dignity, liberty, solidarity, reciprocity, respect, complementarity, harmony, transparency, equilibrium, equality of opportunity, social equity and gender equity in participation, common well-being, responsibility, social justice, distribution and redistribution of products and social goods, in order to live well.56 In Ecuador, it is stated that “we decide to construct a new form of living together as citizens, in diversity and harmony with nature, in order to achieve living well, sumak kawsay”.57 There is also the right of the population to live in a healthy and ecologically balanced environment, which warrants sustainability and living well, sumak kawsay.58 The fundamental rights of the Constitution of Bolivia59 include the right to a life in dignity and of integrity, without torture or violence, the right to water and food, the right to education, the right to health, the right to habitat and an adequate standard of living, the right to universal and equitable access to basic services of drinking water, of sanitation, electricity, gas for domestic use, postal- and telecommunications.60 The Constitution of Ecuador addresses rights in general (Title I) and the rights and obligations of living well (chapter two). They include the right to water and food, a healthy environment, communication and information, culture and science, education, habitat and housing, health, work and social security. In complementing the rights of living well, the Constitution also outlines the vision(s) behind and systems of, for example, inclusion, education, health, social security, and housing among others.61 55 56 57 58 59 60

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Acosta and Martínez (eds.), 2009b, p. 7. Constitution of Bolivia, Chapter Two. Constitution of Ecuador, Preamble. Constitution of Ecuador, Art. 14. Constitution of Bolivia, Chapter 2: Fundamental Rights. The Constitution of Bolivia, Part four, title II, Chapter 2: Land and territory. Art. 349, (I): The natural resources are indivisible and indefeasible property and direct domain of the Bolivian people, and the state shall administrate them in accordance with the collective interest. (II) The State recognises, respects and grants individual and collective property rights of the land as well as of the use and benefit of other natural resources. Title VII: Living Well

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As regards water, access to water and to sanitation constitute human rights that are not objects of concession or privatisation and are subject to licensing, regulation and registration, in accordance with the law.62 In Ecuador, the human right to water is fundamental and cannot be renounced. Water constitutes a national strategic heritage for public use, which is inalienable, ‘in-embargable” and essential to life.63 While the constitutional protection of the right to water is innovative from a European perspective, the debate about the right to water and related issues is not a recent phenomenon in Latin America. Several Latin American constitutions already outline this right or aspects hereof.64 One example is the reform of the Constitution of Uruguay in 2004. A civil society campaign resulted in the inclusion of access to drinking water in Article 47 of the Constitution, including regulation of public management of water and sanitation services based on social participation and sustainability.65 Moreover, courts in Argentina, Brazil, Colombia and Costa Rica have held that the right to water is an implicit but enforceable constitutional right and that access to safe drinking water is a fundamental prerequisite to the enjoyment of other human rights, including the right to life and the right to live in a healthy environment.66

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In Bolivia, for example, water rights have been highly contested and in particular during the “water wars” in the 1990s. Traditional water rights and uses as well as the guarantee of the right to water for irrigation for indigenous and farming communities were recognised by law in 2004 (Ley de Promoción y Apoyo al Sector de Riego para la Producción de Afropecuaria y Forestal ) and a Ministry for Water was created in 2006 to coordinate and oversee water issues (Law No. 3351). The Ministry of the Environment and Water was reconfirmed in 2013. Constitution of Ecuador, Art. 12. Chapter 2 on Biodiversity and natural resources, Section six on Water (Art. 411 and 412) mentions the guarantee by the state of water resources and the authority in charge of water management, regulation and control as well as co-operation in terms of environmental management and water management with a focus on the eco system. In 2011, the guarantees of the Constitution of Mexico were transformed into human rights, which included the right to an adequate environment for the development and well-being of all persons, and the ensuing debate concerned the right to water (art. 3, par.4). (Benito López Covarrubias, El Derecho al Agua, un derecho constitucional. XXII Congreso Nacional de Hidraulica, Acapulco, Guerrero, México, Noviembre 2012). The Public Eye Awards. Comisión Nacional en Defensa del Agua y de la Vida. (www. publiceye.ch). David R. Boyd, The Right to Water: A Briefing Note, Simon Fraser University, Burnaby 2011, p. 5.

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Water is perceived as a national heritage or public good in Bolivia and Ecuador. The innovation lies in the constitutionally recognized principle of living well and the right to universal and equitable access to basic services of drinking water, which confers a clear obligation upon the state to provide these services and access to them. The International Recognition of the Human Right to Water The recognition of the right to water as a human right has been in the works for many years. However, it is mainly national constitutions, such as the Constitutions of South Africa and of Uruguay, that have been explicit in their recognition. In the past 30 years, states have ratified international human rights conventions that could amount to a recognition of the right to water particularly in regard to adequate living conditions of women,67 the health of children,68 the impact on people’s lives of access to safe drinking water and sanitation,69 persons living with disabilities,70 and ILO Convention No. 161 of 1985 on Occupational Health Services.

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Art. 14 of the Convention on the Elimination of Discrimination against Women (CEDAW, 1979): States parties shall take all appropriate measures to eliminate discrimination against women in rural areas to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right: … (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.” Art. 24 of the Convention on the Rights of the Child (CRC, 1989): States parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health … 2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, (…) the provision of adequate nutritious foods and clean drinking water (…)”. The Inter-American Court of Human Rights also interpreted the right to life as including access to conditions that guarantee a dignified life. This interpretation finds a specific resonance with the impact that lack of access to safe drinking water and sanitation has on people’s health and life. (Corte Interamericana de Derechos Humanos, Caso Villagrán Morales y Otros (Caso de los “Niños de la Calle”), Sentencia de 19 de noviembre de 1999 (Ser. C) No. 63, párr. 144 y 191). Convention on the rights of persons living with disabilities, Art. 28 on adequate standard of living and social protection.

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While the rights of living well generally compare with the rights outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966),71 the right to water is not directly mentioned in it. Article 11 on the right of everyone to an adequate standard of living and Article 12 on the enjoyment of the highest attainable standard of physical and mental health have over time been interpreted as including the right to water.72 In 1995, the Committee on Economic Social and Cultural Rights thus recognized that water is a human right, which entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements. General Comment No.15 (2002) stated that the right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. According to the Committee the right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.73 General Assembly resolution 54/175 of December 17, 1999, and General Comment No. 15 (2002) both refer to the “right to water”. Following the publication of General Comment No.15, several States agreed to and formally acknowledged the right to water as part of their obligations under the ICESCR. The UN Special Rapporteur further developed the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation in 2002.74 In 2006, the United Nations Sub-commission on Human Rights issued Guidelines for the realization of the right to drinking water supply and sanitation in order to assist government policymakers, international agencies and members of civil society working to implement the right to drinking water and sanitation.75 The 2007 Report by the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under 71 72 73 74 75

International Covenant on Economic, Social and Cultural Rights, 1966. General Comment No. 15 on the Right to Water, 2003. General Comment No. 15, 2002, E/C.12/2002/11 of 20 January 2003. E/CN.4/Sub.2/2002/20. Draft guidelines. E/CN.4/Sub.2/2005/25 of 11 July 2005, Commission on Human Rights, Economic, Social and Cultural Rights, Realization of the right to drinking water and sanitation. Report of the Special Rapporteur, El Hadji Guissé.

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international human rights instruments provides a good overview of the human rights issues in regard to drinking water.76 In 2008 the United Nations Human Rights Council mandated an independent expert to work on the issue of human rights obligations related to access to safe drinking water and sanitation. Finally, 122 UN Member States of the UN General Assembly (2010) resolved that the right to safe and clean drinking water and sanitation as a human right is essential for the full enjoyment of life and all human rights77 and the UN Human Rights Council formally recognized that the human right to water and sanitation are a part of the right to an adequate standard of living.78 From the above it may be concluded that the international recognition of the right to water has been slightly slower than the national recognition and constitutional protection of the right to water in Bolivia and Ecuador. Where water has been placed in the international human rights framework, in Bolivia and Ecuador water is both part of the principles behind living well, and living well appears as part of a broader human rights endeavour. In this way it becomes possible to trace a certain similarity or comparability between the international human rights framework and the words of the Constitutions of Bolivia and Ecuador in terms of living well.

Conclusion “The constitutional processes and longer history of a drive for participation… points towards a re-definition of the concept of democracy and with it the basis of rule of law and the requirements for a good life.” 79 In both Bolivia and Ecuador the emphasis on the pluri-national, on participation incl. public contest, accountability mechanisms and equality measures all contribute to the formal establishment of a new constitutional framework that appears more inclusive than before. Civil society and movimientismo have played a role in making change possible and in constitutional debates, and it will be interest-

76 77 78 79

A/HRC/6/3 of 16 August, 2007, available at http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/G07/136/55/PDF/G0713655.pdf?OpenElement. GA resolution A/RES/64/292 of 3 August, 2010, available at http://www.un.org/en/ ga/64/resolutions.shtml. HRC resolution 15/9 (2010), Human rights and access to safe drinking water and sanitation, 2010. Mcneish, 2008, p. 86.

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ing to see how citizens and civil society representation in the new institutions will develop and how inclusion and participation will play out. Both constitutions formally provide a more enabling environment for debate, participation and inclusion. They comprise new forms of institutions and a legal and policy framework conducive for participation, possibly due to the challenging of the conditions for meaningful citizenship. There are new representative structures and civil society appears to have more possibility to participate in the debate on issues of public interest, including human rights. Whether individual engagement and awareness of rights means a rediscovery of citizenship, the question is how citizens engage in holding the executive accountable in the long term. It also appears that there is a stronger focus on the establishment and mandate of the institutions that typically promote and protect human rights. This could imply a change in the perception of these institutions and even in their legitimacy. While new forms of participation have emerged, the question is whether the structures and institutions provide for further inclusion and an improved quality of democracy. Water is an example of a highly debated issue, both in terms of the resource itself and access hereto which has developed into a human and a constitutional right. While the process of recognition was more or less simultaneous, it appears that the participatory constitutional processes and resulting constitutions in Bolivia and Ecuador have interacted with the development of international norms and thus affected international human rights law. Domestic law and policy thus continues to affect international law. As water has developed into a human right, could this right play a part in the essentially indigenous concept of living well as declared in the Constitutions of Bolivia and Ecuador? The rights and obligations that come with these constitutional processes, appear to be projects or milestones on the road for the multifaceted Andean societies to ensure that the peoples perceive themselves as part of one nation state as defined by the constitutions. Ensuring that the word of the law – the Constitution – is respected in fact could indeed redefine democracy, the rule of law and the good life in Bolivia and Ecuador and potentially bring about the promised change. In the words of de Sousa Santos it is necessary to live through the experimenting constitutionalism or the constitutional experimentalism in Latin America80 and to live the apparent contradictions of

80

Boaventura de Sousa Santos Las paradojas de nuestro tiempo y plurinacionalidad , in Acosta and Martinez (eds.), 2009c, p .23.

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urgently resolving social and ecological issues, while also resolving civilizational questions in the long term.

Literature and References Acosta, Alberto and Esperanza Martinez (eds.), Derechos de la Naturaleza – el futuro es ahora. Abya Ayala, Quito 2009a. Acosta, Alberto and Esperanza Martinez (eds.), El buen Vivir. Una vía para el desarrollo, Editorial Universidad Bolivariana, Santiago 2009b. Acosta, Alberto and Esperanza Martinez (eds.), Plurinacionalidad – democracia en la diversidad, Editorial Universidad Bolivariana, Santiago 2009c. Boyd, David R., The Right to Water: A Briefing Note, Simon Fraser University, Burnaby 2011. Corte Nacional Electoral, La, La Constitución Política del Estado de Bolivia, [The Constitution of Bolivia], Sucre, Enero de 2009. Consejo Nacional Electoral, El, La Constitución de la Republica de Ecuador, [The Constitution of Ecuador], Quito 2008. Corporación Latinobarometro, El, Latinobarómetro, Informe 2010, 2011. Santiago 2010, 2011. Danish Institute for Human Rights, The, The Constitutional Protection of Human Rights, Brief, The Danish Institute for Human Rights, Copenhagen 2012a. Danish Institute for Human Rights, The, Informal justice systems charting a course for human rights-based engagement, The Danish Institute for Human Rights for UNDP, UNICEF and UNIFEM (now UN Women), Copenhagen 2012b. Defensor del Pueblo de Bolivia, El, Interculturalidad y derecho. Segunda ed., La Paz, marzo de 2008. De Sousa Santos, Boaventura, Las paradojas de nuestro tiempo y plurinacionalidad in Alberto Acosta and Esperanza Martinez (eds.), Plurinacionalidad – democracia en la diversidad, Editorial Universidad Bolivariana, Santiago 2009c. French Balseca, María Carolina, El Derecho humano al agua en Ecuador: avances, límites y retos. Tésis de grado, Universidad Internacional del Ecuador, Quito, Abril 2012. Ibarra, Hernán, Visión Histórica -politica de la Constitución del 2008, Centro Andino de Acción Popular, Quito 2010. López Covarrubias, Benito, El Derecho al Agua, un derecho constitucional. XXII Congreso Nacional de Hidráulica, Acapulco, Guerrero, México, Noviembre 2012. Lucero, José Antonio, “Locating the ‘Indian problem’ - Community, Nationality, and Contradiction in Ecuadorian Indigenous Politics,” Latin American Perspectives, Vol. 30, No. 1, January 2003, p. 23-48.

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Mcneish, John-Andrew, “Constitutionalism in an Insurgent State: Rethinking Legal Empowerment of the Poor in a Divided Bolivia,” in Dan Banik: Rights and Legal Empowerment in Eradicating Poverty. Ashgate Publishers, Aldershot, Brookfield USA, Singapore and Sydney 2008. Quijano, Anibal, Descolonialidad del poder- el horizonte alternativo, in Alberto Acosta and Esperanza Martinez (eds.), Plurinacionalidad – democracia en la diversidad, Editorial Universidad Bolivariana, Santiago 2009c. Sanchez, Consuelo, Autonomía, Estados plurietnicos y plurinacionales in Rachel Z. Yrigoyen Fajardo (ed.), Pueblos indígenas, constituciones y reformas políticas en América latina. ILSA, INESC, IILS and REJALU, Lima 2010. Spliid, Ulrik, National Human Rights Institutions and Public Participation. Issue paper. The Danish Institute for Human Rights, Copenhagen 2013. Van Cott, Donna Lee, Radical democracy in the Andes: Indigenous parties and the quality of democracy in Latin America, Working Paper No. 333, Kellogg Institute, University of Notre Dame, Indiana, December 2006. Walsh, Catherine, Estado Plurinacional e intercultural. Complementariedad y complicidad hacia el Buen Vivir, in Alberto Acosta and Esperanza Martinez (eds.), Plurinacionalidad – democracia en la diversidad, Editorial Universidad Bolivariana, Santiago 2009c. Yrigoyen Fajardo, Raquel Z. (ed.), Pueblos indígenas, constituciones y reformas políticas en América latina. ILSA, INESC, IILS and REJALU, Lima 2010.

UN Documents UN Universal Declaration on Human Rights (UDHR) International Covenant on Civil and Political Rights (ICCPR). International Covenant on Economic, Social and Cultural Rights (ICESCR) Convention on the Rights of the Child (CRC) Convention on the Elimination of Discrimination against Women (CEDAW) Convention on the rights of persons living with disabilities (CRPD) General Comment No.15 on the Right to Water, 2002, E/C.12/2002/11 of 20 January 2003 General Assembly resolution A/64/292 (2010). The Human Right to Water and Sanitation UN HRC resolution 15/9 (2010). Human rights and access to safe drinking water and sanitation UN HRC (2007) Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to eq-

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uitable access to safe drinking water and sanitation under international human rights instruments UN HRC (2010) Report of the independent expert on the issue of human rights obligations related to safe drinking water and sanitation, Catarina de Albuquerque UN HRC (2010) Report of the independent expert, Catarina de Albuquerque, progress report on the compilation of good practices Draft guidelines. E/CN.4/Sub.2/2005/25 of 11 July 2005, Commission on Human Rights, Economic, Social and Cultural Rights, Realization of the right to drinking water and sanitation. Report of the Special Rapporteur, El Hadji Guissé UN Special Rapporteur (2011) Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque Fact sheet no. 35, (2010) The Right to Water, GE.10-14425 – August 2010 – 14,465.

Human Rights Borders Under Pressure

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chapter 11

Torture: Europe and the Americas* Manfred Nowak and Karolina Miriam Januszewski

Historical Origins of the Fight against Torture During the Middle Ages, torture was a lawful method of extracting information and confessions in the criminal procedure of most European States. This had to do with the fact that oaths and ordeals as archaic methods of proof had been replaced in the course of the 12th and 13th centuries by confession as the “queen of proofs”.1 A significant part of the Constitutio Criminalis Carolina of the German Emperor Charles V of 1532, of the French ordonnance royale of 1539 and of other criminal procedure codes of that time were regulating the precise application of torture to specific crimes and circumstances.2 Under the influence of rationalism and humanism in the age of Enlightenment, this horrible practice was gradually abolished from European legal statutes. Sweden was the first country to abolish torture in 1734, followed by Prussia in 1754, Denmark in 1771,3 Austria in 1776, France in 1780, The Netherlands in 1798, Norway in 1819, Portugal in 1826 and Greece in 1827, to name a few European States.4 This, however, does not mean that torture, cruel, inhuman or degrading treatment and punishment, including corporal and capital punishment, were eradicated in practice. They continued to be applied, for instance, by European colonial powers in Latin America, Africa and Asia, and experienced a brutal renaissance during the rule of totalitarian regimes, both fascist and communist, in the first half of the 20th century in Europe. Although the legal abolition of torture and slavery is often cited as one of the first success stories of the human rights movement, which emerged during the age of Enlightenment, only few of the first constitutional bills of rights of the late 18th and 19th centuries in fact contain explicit prohibitions * 1 2 3 4

The following contribution was finalised in 2012 and is based on current data at the time of its completion. It has been only updated partially. Cf., e.g., Edward Peters, Torture. University of Pennsylvania Press, Philadelphia 1996, p. 40ff. Peters, 1996, not 1, p. 72 and p. 238ff. Torture was abolished in Denmark in 1771 but reintroduced in 1772, and was finally abolished in 1837. Peters, 1996, note 1, p. 89f.

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of these two most obvious violations of the emerging right to human dignity and personal integrity. It is interesting to note that early British and American human rights documents seem to attach more importance to cruel punishments in criminal proceedings than to the practice of torture as a means to extract confessions. Already the English Bill of Rights of 1689, which was written under the influence of John Locke, prohibited excessive bail as well as “cruel and unusual punishment”. This formulation was used as a model for the human rights documents adopted during the American Revolution one century later. The Virginia Bill of Rights of 12 June 1776 stipulated, e.g., that in all capital and criminal cases a man shall not be compelled to give evidence against himself, and that no cruel and unusual punishment shall be inflicted.5 These and similar provisions in the bills of rights of other former British colonies in America6 formed the basis for the adoption of the US Bill of Rights of 4 March 1789, i.e. the first ten amendments to the US Federal Constitution of 1787. While the 5th Amendment guarantees that no person shall be compelled in a criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law, the 8th Amendment explicitly prohibits any cruel and unusual punishment. Slavery continued to exist in the US until the civil war and was only abolished by the 13th Amendment of 31 January 1865. An explicit prohibition of torture can only be found in rare cases such as in the Political Constitution of the Free State of Coahuila and Texas of 1827.7 This constitution also contains an explicit prohibition of corporal punishment and a general provision that “[the] greatest care shall be taken that jails shall be used only for the purpose of securing the accused but not for molesting them”.8 The European counterpart to the American bills of rights, the French Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l’Homme et du Citoyen) of 26 August 1789, does not contain any provision in relation to torture, the prohibition of self-incrimination, or cruel and unusual punishment. Article 8 requires, however, that the law shall provide only 5 6 7

8

Articles 8 and 9 Virginia Bill of Rights of June 12, 1776. See, e.g., Articles 22 and 25 of the Declaration of Rights in the Constitution of Maryland of May 8, 1776. See Article 190 of the Political Constitution of the Free State of Coahuila and Texas of 1827: “No torture shall be used, and should any punishment be ordered to be inflicted, they shall never pass to the family of the sufferer, but they shall only be received by him who has been condemned to suffer them”. A copy of this constitution can be found online in Prof. Horst Dippel’s collection of modern constitutions of the world from the late 18th century to the middle of the 19th century at www.modern-constitutions.de. Article 187 of the Political Constitution of the Free State of Coahuila and Texas of 1827.

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for such punishments as are “strictly and obviously necessary”.9 The French Constitution of 1793 added that punishments should be proportional to the crime and useful to society.10 The French Constitution 1848 was more precise and prohibited capital punishment in all political matters and slavery in all French territories.11 The German Constitution of 1849 went an important step further and prohibited capital punishment (except in times of war and mutiny at the high sea), pillory, branding and corporal punishment.12 The first draft for an Austrian bill of rights prepared by the Austrian Parliament in Kremsier between November 1848 and March 1849 went even beyond by prohibiting capital punishment without exception as well as corporal punishment, pillory, branding, public work, civil death and confiscation of property.13 The Austrian Constitution, which was finally adopted in 1849, did no longer contain any provision regarding cruel and unusual punishments, but prohibited any form of slavery and servitude.14 The first countries having abolished the death penalty for all crimes were Venezuela (1863), San Marino (1865) and Costa Rica (1877). For ordinary crimes only, San Marino (1848), Portugal (1867) and The Netherlands (1870) had abolished the death penalty already in the 19th century.15 Only very few constitutions of the 19th century, 9

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11 12

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Article VIII of the French “Déclaration des droits de l’homme et du citoyen”, which is part of the first French Constitution of September 3, 1791: “La loi ne doit établir que des peines strictement et évidement nécessaires”. Article 15 of the „Déclaration des droits de l’homme et du citoyen“ of the French Constitution of 24 June 1793: “…les peines doivent être proportionées au délit et utiles à la société.” Articles 5 and 6 of the French Constitution of November 4, 1848. § 139 der Verfassung des Deutschen Reiches (“Paulskirchenverfassung”) vom 28.3.1849: “Die Todesstrafe, ausgenommen wo das Kriegsrecht sie vorschreibt oder das Seerecht im Fall von Meutereien sie zuläßt, so wie die Strafen des Prangers, der Brandmarkung und der körperlichen Züchtigung sind abgeschafft.” See Fritz Hartung, Die Entwicklung der Menschen- und Bürgerrechte von 1776 bis zur Gegenwart, 3rd ed. Musterschmidt, Göttingen/Berlin/Frankfurt 1964, p.82. § 4 of the “Kremsierer Entwurf” of 3 March 1849: “Die Todesstrafe ist abgeschafft. Die Strafen der öffentlichen Arbeit, der öffentlichen Ausstellung, der körperlichen Züchtigung, der Brandmarkung, des bürgerlichen Todes und der Vermögenseinziehung dürfen nicht angewendet werden.” See, e.g., Felix Ermacora, Menschenrechte in der sich wandelnden Welt, Band I. Österreichische Akademie der Wissenschaften, Wien 1974, p. 155. § 26 of the “Reichsverfassung für das Kaisertum Österreich” of March 4, 1849: see Hartung, 1964, note 12, 78. Amnesty International, Death Penalty in Numbers, Abolitionist and Retentionist Countries, available at http://amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries (accessed February 2014).

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however, contained an explicit prohibition of torture. One notable exception was the Turkish Constitution of 1876, which contained an absolute and complete prohibition of torture in all its forms.16 Further early precedents were for instance the Constitutional Act of Bayonne (1808) and the Constitution of the Swiss Canton of Fribourg (1831).17 The attempts at the Vienna Congress of 1815 and subsequent bilateral and multilateral treaties aimed at the abolition of slavery and the slave trade are often cited as early historical antecedents of international human rights law.18 The prohibition of torture and ill-treatment, on the other hand, first emerged in the context of humanitarian law and the mandate system of the League of Nations, i.e. in relation to armed conflicts and colonialism. In 1863, the Lieber Code, which had been adopted with the aim of preventing the cruelties committed during the American Civil War, contained the following provision: “Military necessity does not admit of cruelty – that is, the admission of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”19 Around the same time, the Red Cross Movement was created in Geneva with the aim of establishing international minimum standards applicable in times of armed conflict. Many international treaties codifying international humanitarian law were inspired by the American Lieber Code. Article 23 of the Project for an International Declaration concerning the Laws and Customs of War of 1874,20 Article 4 of the 2nd Hague Convention of 189921 and Article 4 of the 4th Hague

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19 20 21

Article 26 of the Turkish (Ottoman) Constitution of December 11, 1876: “La torture et la question, sous toutes les formes, sont complètement et absolument prohibées.” See Ermacora, 1974, note 15, 128. Article 133 of the Acte Constitutionnel de l’Espagne, ville de Bayonne, juillet 6,1808 : “La torture est supprimée. Toutes les rigueurs employées dans les arrestations, détentions ou exécutions, autres que celles autorisées par la loi, sont des crimes”; Article 10 of the Staatsverfassung des Kantons Freiburg 1831: “Die Folter ist abgeschafft.”; Both texts are available at www.modern-constitutions.de (note 7). See, e.g., Ermacora, 1974, note 13, 119; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection. Oxford University Press, Oxford 2009, p. 8; Manfred Nowak, Introduction to the International Human Rights Regime. Martinus Nijhoff Publishers, Leiden/Boston 2003, p. 20. Art. 17 of General Order 11: The Lieber Code (Instructions for the Government of Armies of the United States in the Field), April 24, 1863. Brussels, August 27, 1874. Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, July 29, 1899, Article 4 on prisoners of war.

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Convention 190722 spelled out, e.g., that prisoners of war must be treated humanely. The Geneva Convention on Prisoners of War 1929 added that prisoners of war are entitled to respect for their persons and honour and shall be protected particularly against acts of violence.23 Article 3 common to the four Geneva Conventions of 1949 prohibits, even in non-international armed conflicts, in relation to all persons not actively taking part in hostilities, any “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment.”24 The 3rd Geneva Convention on the Treatment of Prisoners of War applicable in international armed conflicts contains fairly detailed rules that prisoners of war shall be treated with respect for their dignity, including an explicit prohibition of torture.25 Another historical antecedent of the international human rights protection is the mandate system of the League of Nations. At the Paris Peace Conference that ended World War I, the Allied Powers decided that the former German colonies in Africa and the Pacific, and several non-Turkish provinces of the Ottoman Empire should be administered by different governments on behalf of the newly created League of Nations. These mandates were established under Article 22 of the Covenant of the League of Nations and supervised by the Permanent Mandates Commission. According to Article 22, the Mandatory Powers (e.g. the UK, France, Belgium, South Africa or Australia) were re22 23 24 25

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, October 18, 1907. Articles 2 and 3 of the Convention relative to the Treatment of Prisoners of War, Geneva, July 27, 1929. Article 3 common to the four Geneva Conventions, August 12, 1949. Convention (III) relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, Articles 13, 14 and 17 (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”). For the prohibition of torture in international humanitarian law see also Manfred Nowak, “The Crime of Torture,” in: M. Odello and G.L. Beruto (eds.), Global Violence: Consequences and Responses, Forty years of excellence in Humanitarian Dialogue: the 40th Anniversary of the International Institute of Humanitarian Law, 33rd Round Table on Current Issues of International Humanitarian Law (San Remo, September 9-11, 2010). International Institute of Humanitarian Law, Milan 2011, p. 157163, Manfred Nowak, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, in A. Clapham and P. Gaeta (eds.), The Oxford Handbook on International Law in Armed Conflict, Oxford University Press, Oxford 2014, p. 387-409, and Manfred Nowak and Ralph Janik, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” in A. Clapham, P. Gaeta and M. Sassoli (eds.), The 1949 Geneva Conventions. A Commentary (Oxford University Press, forthcoming).

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sponsible for the administration of the respective territories under conditions which would guarantee certain human rights, such as freedom of religion and the prohibition of abuses, including slave trade.26 The real breakthrough towards a comprehensive system of international human rights protection was only achieved after World War II in reaction to the Nazi Holocaust. In other words, genocide, the systematic practice of torture and similar acts of barbarity in Europe were at the roots of the gradual development of international human rights law, both at the universal and the regional level. The two most effective regional systems for the protection of human rights were created in Europe and the Americas. This means that American and European scholars and diplomats were instrumental in drafting the first international standards and instruments for the protection of human rights within the United Nations, the Organization of American States (OAS) and the Council of Europe. Eleanor Roosevelt chaired the UN Commission on Human Rights during the crucial years when the Universal Declaration of Human Rights was drafted. René Cassin, the French representative and Nobel Prize winner, played a major role in drafting the Universal Declaration 1948 and the European Convention on Human Rights (ECHR) of 1950. Other influential members of the drafting committee were Charles Malik (Lebanon), Peng Chun Chang (China), Hernan Santa Cruz (Chile), Alexej Pavlov (USSR), Geoffrey Wilson (UK) and William Hodgson (Australia).27 Behind the scenes, the director of the UN Division of Human Rights, Canadian law professor John Humphrey, also had a significant influence.28 Eight months before the Universal Declaration of Human Rights was adopted in Paris on 10 December 1948, the Ninth International Conference of American States in Bogotá, Colombia, in April 1948 had created the OAS and, at the same time, had adopted the world’s first international human rights instrument of a general nature, the American Declaration of the Rights and Duties of Man. Although the Preamble refers to the dignity of the individual, the Declaration misses an explicit prohibition of torture. The relevant provisions rather show a strong resemblance with the first bills of rights dating back to the American Revolution of the late 18th century. Article XXV relat26 27

28

Article 22 of the Covenant of the League of Nations, adopted on June 28, 1919 at the Paris Peace Conference. On the mandate system see Ermacora, 1974, note 13, 378ff. See Ashild Samnoy, “Origins of the Universal Declaration,” in Gudmundur Alfredsson and Asbjorn Eide (eds.), The Universal Declaration of Human Rights. The Hague/Boston/ London 1999, 3 (6ff.). See also the “Humphrey draft” below and John Humphrey, Human Rights and the United Nations: A Great Adventure. Transnational Publishers, New York 1984.

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ing to the right to personal liberty guarantees that every individual who has been deprived of his liberty “also has the right to humane treatment during the time he is in custody”. Article XXVI covers the right of accused persons to an impartial and public hearing before a court and “not to receive cruel, infamous or unusual punishment”. Article 5 of the Universal Declaration of Human Rights (UDHR) contains for the first time the wording “[no] one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, which forms the basis for identical or similar provisions in various international and regional human rights treaties, including Article 3 of the European Convention on Human Rights 1950 (ECHR), Article 7 of the International Covenant on Civil and Political Rights 1966 (CCPR), Article 5 of the American Convention on Human Rights 1969 (ACHR), Article 5 of the African Charter of Human and Peoples’ Rights 1981, Articles 1 and 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT), Article 37 of the UN Convention on the Rights of the Child 1989 (CRC) etc. The text of Article 5 UDHR goes back to Article 4 of the draft prepared by John Humphrey, where he still linked the prohibition of torture with the American notion of unusual punishment.29 Article 7 of the “Cassin Draft” linked the right to life to the right to “physical inviolability” and provided that “[no] person, even if found guilty, may be subjected to torture, cruelty, or degrading treatment”.30 In the first suggestions of the drafting committee in the Human Rights Commission of June 1947, there were different alternatives proposed, partly linking the right to dignity and bodily integrity to the right to life, personal liberty and personal security in Article 7,31 and partly linking it to the right to fair criminal trial in Article 10.32 This close connection to the right to a fair trial also 29

30 31

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Article 4 of the Draft Outline of an International Bill of Human Rights, prepared by the Division of Human Rights of the Secretariat (the “Humphrey Draft”): “No one shall be subjected to torture, or to any unusual punishment or indignity.” See Mary Ann Glendon, A World Made New – Eleanor Roosevelt and the Universal Declaration of Human Rights. Random House, New York 2001, p. 271. Article 7 of the Suggestions Submitted by the Representative of France for Articles of the International Declaration of Human Rights (the “Cassin Draft”). Glendon, 2001, p. 275. Chilean proposal for Article 7: “All persons shall have the right to the enjoyment of conditions of life enabling them to live in dignity and to develop their personality adequately.” Lebanese proposal for Article 7: “Everyone has the right to life and bodily integrity from the moment of conception, regardless of physical or mental condition, to liberty and security of person.” Glendon, 2001, note 29, p. 282. Article 10 of the June 1947 Human Rights Commission Draft: “No one, even if convicted for a crime, can be subjected to torture”. Glendon, 2001, note 29, p. 283.

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prevailed in Article 7(3) of the Geneva Draft of December 1947: “No one shall be subjected to torture, or to cruel or inhuman punishment or indignity.”33 In Article 4(2) of the Lake Success Draft of June 1948, the ultimate wording that “[no] one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment” was agreed upon, but this provision was related to the prohibition of slavery, as later in Article 5 of the African Charter of Human and Peoples’ Rights 1981.34 This nexus between the prohibition of slavery, slave trade and servitude on the one hand, and the prohibition of torture and other forms of ill-treatment on the other was still maintained in Article 4 of the Third Committee Draft in the General Assembly of December 1948.35 In the final version of Article 5 UDHR of 10 December 1948, the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment was adopted by the Plenary of the General Assembly as an independent right, embedded between the prohibition of slavery (Article 4) and the right to recognition as a person before the law (Article 6). This context underlines the close relationship of these three rights with the right to human dignity and personal integrity. It is difficult to say whether the formulation of the prohibition of torture and other forms of ill-treatment was more influenced by American or European human rights thinking. As Mary Ann Glendon writes, the rights of the first column of “Cassin’s Portico” (Articles 3 to 11) “had abundant antecedents in existing constitutions, provoked little controversy in the drafting process, consumed the least time on the third committee, and were approved unanimously without abstentions by the General Assembly”.36 It is probably fair to say that Article 5 was a joint product of many cooks and symbolizes a strong reaction to the Holocaust, systematic torture and other denials of the right to human dignity by the Nazis. It is crucial that the prohibition of torture stands as an independent right and is not linked to other rights, such as the rights to personal liberty and a fair trial, since torture is not only used to extract a confession from a criminal suspect. One may regret that this important right 33

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Article 7 of the Geneva Draft International Declaration on Human Rights of December 1947: ibid, 290. Article 7(1) contained the presumption of innocence, the right to a fair trial and the prohibition of retroactive criminal laws. Article 7(2) referred to international criminal trials in accordance with the “general principles of law recognized by civilized nations”. Article 4(1) and (2) of the Lake Success Draft International Declaration of Human Rights of June 1948. Glendon, 2001, note 29, p. 295. Article 4 of the Third Committee Draft Universal Declaration of Human Rights. Glendon, 2001, note 29, p. 302. Glendon, 2001, note 29, p. 180.

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is phrased in purely negative terms instead of a positive right to human dignity and/or personal integrity. This positive formulation was only achieved in later regional documents, such as Article 5 of the American Convention on Human Rights 1969,37 Article 5 of the African Charter of Human and Peoples’ Rights 1981,38 and Articles 1 to 5 of the European Union Charter of Fundamental Rights 2000.39 The strong focus on the right to human dignity in Article 1 of the EU Charter is influenced by Article 1 of the German Constitution of 1949 and can also be interpreted as a direct reaction to the Nazi barbarity.

The Development of the Prohibition of Torture and Other Forms of Ill-treatment in Europe after World War II The horrors of the Holocaust and World War II led to a revival of the concept of human dignity worldwide, and particularly in Europe. The reaffirmation of the “dignity and worth of the human person” in the Preamble of the UN Charter and in the Preamble of the UDHR40 have been echoed in some of the new constitutions of European States, above all in Article 1 of the German Basic Law of 1949: “Human dignity is inviolable.” On the basis of this one simple sentence, the German Federal Constitutional Court has developed a rich body of jurisprudence,41 and many legal and philosophical scholars have contributed to a modern understanding of the concept of human dignity as the basis of

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Article 5 ACHR (Right to Humane Treatment): “1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture …”. Article 5 AfrChHPR: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” Chapter I (Dignity) contains 5 Articles on Human Dignity (Article 1: “Human dignity is inviolable. It must be respected and protected”), Right to Life (Article 2), Right to the integrity of the person (Article 3), Prohibition of torture and inhuman or degrading treatment or punishment (Article 4), and Prohibition of slavery and forced labour (Article 5). The Preamble of the UDHR 1948 starts as follows: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind …” BVerfGE 30, 1; BVerfGE 30, 173; BVerfGE 45, 187; BVerfGE 115, 118.

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human rights.42 Since the former German President Roman Herzog presided the European Convention which drafted the European Charter of Fundamental Rights, human dignity also plays an important role in the first chapter and Article 1 of the European Charter of 2000, which with the entry into force of the Treaty of Lisbon in 2009 became legally binding as the Bill of Rights of the European Union, creating relevant jurisprudence of the European Court of Justice.43 More important for the development of the concept of human dignity and the prohibition of torture was, however, the European Convention of Human Rights (ECHR), adopted by the ten founding members of the Council of Europe in 1950. The Council of Europe was created as a Western European organization based on the common European values of human rights, pluralist democracy and the rule of law.44 As such it strongly rejects all forms of totalitarianism, be it fascism or communism. When the Council of Europe was created, fascist regimes remained in control of Spain and Portugal. After a fascist military junta assumed power in Greece in 1967, the systematic violations of human rights that occurred in the following, including torture, led to a strong reaction by the Council of Europe bodies which meant that Greece had to leave the organization until democracy was restored in 1974.45 Following the end of the Cold War, all former communist States of Central and Eastern Europe, including the Russian Federation and the Caucasus States, with the only exception of Belarus, were gradually admitted to the Council of Europe under

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On the concept of human dignity, see already Immanuel Kant, Grundlegung zur Metaphysik der Sitten. J. F. Hartknoch, Riga 1785; Robert Krammer, Menschenwürde und Art 3 EMRK - Grundrechtsverletzungen in Form von Polizeigewalt und Hat. Jan Sramek Verlag,, Salzburg 2012; Nils Teifke, Das Prinzip Menschenwürde: Zur Abwägungsfähigkeit des Höchstrangigen. Mohr Siebeck, Tübingen 2011; Ernst-Wolfgang Böckenförde, “Menschenwürde als normatives Prinzip – Die Grundrechte in der bioethischen Debatte,” Juristenzeitung, Vol. 58(17), 2003, p. 809; Christoph Enders, Die Menschenwürde in der Verfassungsordnung - Zur Dogmatik des Art. 1 GG. Mohr Siebeck, Tübingen 1997; Franz Josef Wetz, Die Würde der Menschen ist antastbar. Eine Provokation. Klett-Cotta, Stuttgart 1998; and A. Verdross, “Die Würde des Menschen als Grundlage der Menschenrechte,” Europäische Grundrechte-Zeitschrift, Vol. 4, 1977, p. 207. See for instance Dülger (C-451/11), judgment of July 19, 2012; Pringle (C-370/12) judgment of November 27, 2012; O.E.A (joined cases C-356/11 and C-357/11), judgment of 6 December 2012; M. (C-277/11), judgment of November 22, 2012. Article 3 of the Statute of the Council of Europe of May 5, 1949. Denmark, Norway, Sweden and the Netherlands v. Greece I and II, Appl. Nos. 3321/673323/67, 3344/67 and 4448/70; CM Res. DH(70)1 of 15/4/1970 and CM Res. DH(74)2 of 26/11/1974.

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the condition that they ratified the ECHR and the European Convention for the Prevention of Torture (ECPT) of 1989. The ECHR does not contain any explicit reference to the right to human dignity or personal integrity, but Article 3, which is based on Article 5 UDHR, provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Although the prohibition of cruel treatment or punishment, as found in Article 5 UDHR and Article 7 CCPR, is missing, this additional form of ill-treatment is fully covered by the prohibition of inhuman treatment or punishment.46 Article 15 provides for the possibility of States parties to take measures derogating from certain obligations in times of war or other public emergency threatening the life of the nation, but Article 15(2) clearly states that no derogation shall be made from Article 3. This means that the prohibition of torture and other forms of ill-treatment is one of the very few absolute and non-derogable rights contained in the Convention. The ECHR provides for the most effective international monitoring system of all international and regional human rights treaties in the world. Originally, the monitoring of States’ compliance with their obligations under the Convention was entrusted to three bodies: the European Commission of Human Rights, the European Court of Human Rights, both part-time bodies consisting of independent experts from all member States, and the Committee of Ministers as the highest political body of the Council of Europe. In principle, only inter-State complaints to the Commission and the Committee of Ministers were mandatory, while the possibility of individual complaints and the jurisdiction of the Court were subject to optional declarations. This meant that a country like Turkey, despite a known record of gross and systematic human rights violations, could remain a State party for roughly 40 years without accepting the jurisdiction of the Court and without allowing its inhabitants to lodge an individual petition to the Commission. It was only in the 1980s that an inter-State complaint submitted by Denmark, France, The Netherlands, Norway and Sweden against Turkey led to so much political pressure that the Turkish government finally accepted both optional clauses.47 But with respect to most other States parties, the combined case law of the Commission, which decided on the admissibility of complaints and prepared reports with legal opinions on the merits of admissible cases, and the Court had 46 47

Cf. Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture – A Commentary. Oxford University Press, Oxford 2008, p. 558. France, Norway, Denmark, Sweden and the Netherlands v. Turkey, Appl. Nos. 99409944/82, Friendly settlement: Report of the European Commission of Human Rights of 7/12/1985.

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led already to major changes in the law and practice regarding the domestic protection of civil and political rights. This system of international human rights monitoring became so successful that the Commission and the Court were bombarded with thousands of individual complaints per year, which led to a huge backlog and long delays. As a reaction, the 11th Additional Protocol to the ECHR, which entered into force in 1998, replaced the Commission and the old Court by a single and full-time European Court of Human Rights, which every year pronounces between 1.000 and 2.000 judgments and many thousands of admissibility and other procedural decisions. Altogether roughly 800 million inhabitants in the 47 member States of the Council of Europe have the right, after exhausting all domestic remedies, to lodge an individual complaint to the European Court of Human Rights in Strasbourg. The Committee of Ministers does no longer play a role in the adjudication of complaints but is responsible for supervising the execution of the Court’s judgments. In reality, most judgments of the Court are implemented by the respective States parties, and the ECHR, which is directly applicable in the domestic legal system of all States parties, plays in most of them a more important role than the traditional constitutional bills of rights. In the case law of the former Commission and the Court, Article 3 has been playing a central role and has been interpreted in a dynamic and progressive manner, taking into account certain changes in the attitude of European societies towards the concepts of torture, inhuman or degrading treatment and punishment. For instance, the Court in 1978 ruled that the Convention was “a living instrument” to be interpreted in the light of changes in society and held in the landmark judgment of Tyrer v. UK that birching of a juvenile as a traditional punishment on the Isle of Man was no longer compatible with the prohibition of degrading punishment in Article 3.48 This remarkable jurisprudence of outlawing all forms of corporal punishment as violating the right to human dignity and personal integrity was later confirmed by the UN Human Rights Committee, the Inter-American Court of Human Rights and the UN Committee against Torture.49 A similar development occurred in relation to capital punishment despite the fact that Article 2(1) ECHR explicitly considers the death penalty as an exception to the right to life.50 The growing awareness of European societies that capital punishment is no longer compatible with the notion of human dignity led to the adoption of Additional Protocols 48 49 50

ECtHR, Tyrer v. UK (judgment of April 25, 1978). Cf. Nowak and McArthur, 2008, note 46, 561ff. See, e.g., the cases of Soering v. UK (judgment of July 7, 1989), Öcalan v. Turkey (judgment of May 12, 2005) and Al-Saadoon and Mufdhi v. UK (judgment of March 2, 2010).

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6 and 13 which outlaw capital punishment both in times of peace and times of war.51 Today, with the exception of Belarus, Europe is a death penalty-free zone, and new States may only join on condition of having abolished capital punishment. Life-long prison sentences are only compatible with Article 3 ECHR if the person concerned keeps a realistic chance of earlier release and rehabilitation.52 The case law of the European Commission and Court relating to Article 3 ECHR has also developed many further European minimum standards regarding excessive use of force by law enforcement bodies, use of weapons, conditions of detention, enforced disappearances, domestic violence, the prohibition of refoulement etc.53 In addition to the ECHR, the Council of Europe also acted as pioneer when introducing a mechanism of preventive visits to all places of detention as a means to prevent torture and improve conditions of detention. Although this idea had been developed by the Swiss banker and humanist Jean-Jacques Gautier in the late 1970s in reaction to the renaissance of torture in Latin America and first proposed by Costa Rica as a draft Optional Protocol to the UN Convention against Torture, such mechanism was only realized internationally in 2002 with the adoption of Optional Protocol to the Convention against Torture (OPCAT). That is the reason why the Council of Europe took up the idea and adopted in 1989 the European Convention for the Prevention of Torture (ECPT).54 Today, this Convention has been ratified by all 47 member States of the Council of Europe and its ratification constitutes another 51 52

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The 6th and 13th APs to the ECHR were adopted in 1983 and 2002, respectively. ECtHR, Wynne v. UK (judgment of October 16, 2003), para. 25; ECtHR, Kafkaris v. Cyprus (judgment of February 12, 2008), para. 98i ECHR, Vinter and Others v. UK (judgment of July 9, 2013), paras. 110-122. See also the judgment of the German Federal Constitutional Court in BVerfGE 45, 187. Cf., e.g., Pieter van Dijk, Fried van Hoof, Arjenvan Rijn and Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights. Intersentia, Antwerpen-Oxford 2006, p. 405; Francis G. Jacobs and Robin White, The European Convention on Human Rights, 4th ed. Oxford 2006; Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention – Ein Studienbuch, 5th ed. Bech, München/Basel/Wien 2012; Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK) unter besonderer Berücksichtigung der schweizerischen Rechtslage. Schulthess, Zürich 1999; Hannes Tretter, “Kommentar zu Artikel 3 EMRK,” in K. Korinek and M. Holoubek (eds.), Österreichisches Bundesverfassungsrecht, Teil III Grundrechte, Loseblattsammlung, 10. Lieferung. Springer Verlag 2011; and Krammer, 2012, note 45. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1989; see Ursula Kriebaum, Folterprävention in Europa - Die Europäische Konvention zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung oder Bestrafung. Verlag Österreich Wien 2000; and Malcolm Evans and Rod Mor-

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requirement for new States wishing to join the Council of Europe. The Convention does not set new substantive standards but establishes the European Committee for the Prevention of Torture (CPT), consisting of experts from all member States with different backgrounds (lawyers, doctors, psychologists, prison officials, social workers etc.). The CPT has the right to carry out regular and ad hoc missions to all States parties and to conduct unannounced visits to all places of detention, including prisons, pre-trial detention centres, police lock-ups, psychiatric hospitals, special detention facilities for migrants, children, drug users etc. During these visits, the members of the CPT and other experts who accompany them have the right to conduct private and confidential interviews with detainees, victims of torture, witnesses, prison doctors, and public officials, and have access to all relevant documents, such as prison registers and medical records. Usually, the subsequent reports of the CPT are published and contain valuable findings and recommendations to the governments concerned.55 Between 1990 and 2014, the CPT has conducted a total of 215 regular and 146 ad hoc missions and has published 312 reports. The very fact that these preventive missions and visits as well as the recommendations of the CPT exist has had a major impact on the situation of torture and the conditions of detention in most European States. For many years, the CPT has also recommended to States to establish national visiting commissions, as is now required for States parties to OPCAT. In fact, 36 of the 47 member States of the Council of Europe have ratified OPCAT and have established respective national preventive mechanisms (NPMs) in accordance with Articles 3 and 17 to 23 OPCAT.56 Despite having been created during the 1950s for the purpose of economic integration, the three European Communities gradually developed into a political union and were in December 2009 finally replaced with the European Union.57 According to Article 2 of the Treaty of the European Union (TEU), 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”. With the entry into force of the Lisbon Treaty the EU Charter of Fundamental Rights, adopted in 2000 in

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gan, Combating Torture in Europe – The work and standards of the European Committee for the Prevention of Torture. Council of Europe 2002. Cf., e.g., the latest reports of the CPT: Greenland (January 22, 2013), Portugal (April 24, 2013), Spain (April 30, 2013), UK (July 18, 2013), Georgia (July 31, 2013). On the system of NPMs see Nowak and McArthur, 2008, note 49, p. 919f. and 1067f. With the entry into force of the Lisbon Treaty in December 2009, the EU was explicitly granted legal personality: Article 47 TEU.

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Nice, became legally binding and can be directly enforced by the European Court of Justice in Luxembourg, which already in the past had established a case law of human rights as general principles of Community law based on constitutional traditions common to the member States as well as international treaties, above all the ECHR. In addition, the Lisbon Treaty paved the way for accession of the EU to the ECHR which means that even acts of EU bodies, such as the Council, the Commission and the European Parliament, will soon be subjected to the jurisdiction of the European Court of Human Rights in Strasbourg.58 The concept of and right to human dignity plays an important role as Chapter I of the EU Charter of Fundamental Rights: Article 1 is based on Article 1 of the German Constitution and provides that “Human dignity is inviolable. It must be respected and protected.” Article 2 guarantees the right to life and prohibits the death penalty, without exception. According to Article 3, everyone has the right to respect for his or her physical and mental integrity, above all in the fields of medicine and biology. Article 4 provides for the right not to be subjected to torture or to inhuman or degrading treatment or punishment, and Article 5 prohibits slavery, servitude, forced labour and trafficking in human beings. In 2007, the EU Monitoring Centre on Racism and Xenophobia in Vienna was replaced by the EU Fundamental Rights Agency (FRA), a kind of National Human Rights Institution for the European Union, established in accordance with the UN Paris Principles. The Agency provides the EU institutions and the 28 member States with evidence-based advice, based on scientific data collection and comparative analysis. For many years, human rights also have played an important role in the Common Foreign and Security Policy of the EU and in its development cooperation activities, above all with African, Caribbean and Pacific States. The abolition of the death penalty and the eradication of torture are most prominent in the EU’s external human rights policies,59 including in its bilateral human rights dialogues with the US, China and other countries. The EU is a driving force in multilateral human rights diplomacy, above all in the UN Human Rights Council and General Assembly. The recent UNGA resolutions aimed at the gradual abolition of capital punishment and requesting all States to establish at least a moratorium on the death penalty are primarily the result of EU

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Article 6(2) TEU. See the EU Guidelines on the death penalty (revised and up-dated version of June 16, 2008) and EU Guidelines on torture and other cruel, inhuman or degrading treatment or punishment (up-dated version of April 18, 2008).

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human rights diplomacy.60 Although the EU and its member States, above all the UK, have been closely cooperating with the US in the fight against global terrorism and have also been involved in respective human rights violations, including participation in illegal “CIA rendition flights”, secret detention and torture practices,61 the EU has in its official counter-terrorism strategy regularly emphasized that the fight against terrorism must be conducted within the universal framework of human rights, rather than undermining the absolute prohibition of torture and other human rights.62 In conclusion, it is certainly fair to say that Europe has made great achievements since the end of World War II in the promotion and protection of human rights in general, and in the prevention of torture in particular. This does not mean, of course, that torture and other forms of ill-treatment no longer exist in Europe. The judgments of the European Court of Human Rights and the reports of the European Committee for the Prevention of Torture provide ample evidence of torture and other violations of Article 3 ECHR in the Russian Federation, Turkey, the Ukraine, Moldova and other European States.63 Even in EU member States, such as Romania, Bulgaria, Greece, Poland, 60

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See GA Res. A/RES/62/149 (adopted on December 18, 2007, by a vote of 99 in favour to 52 against, with 33 abstentions), A/RES/63/168 (adopted on December 18, 2008, by a vote of 104 in favour to 54 against, with 29 abstentions), A/RES/65/206 (adopted on December 21, 2010, by a vote of 108 in favour to 41 against, with 36 abstentions), A/RES/67/176 (adopted on December 20, 2012, by a vote of 111 in favour to 41 against, with 34 abstentions). Cf., e.g. the reports of Dick Marty of June 12, 2006 and June 7, 2007 on secret detentions and illegal transfers of detainees involving Council of Europe member states to the Parliamentary Assembly of the Council of Europe; interim report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners by Claudio Fava to the European Parliament of June 15, 2006; and the joint global report of four UN special procedures, including the UN Special Rapporteur on Torture, on Secret Detention in the Fight against Terrorism of February 19, 2010, UN Doc. A/HRC/13/42. All these investigations revealed strong evidence of CIA black sites in Poland, Romania and Lithuania. See also the case of El-Masri v. The Former Yugoslav Republic of Macedonia, Grand Chamber judgment of December 13, 2012 and other cases brought before the European Court of Human Rights against Poland (Al Nashiri; lodged in May 2011), Lithuania (Abu Zubaydah; lodged in October 2011), Romania (Al Nashiri) and Italy (Nasr and Ghali; lodged in August 2009). Cf., e.g., the Council Framework Decision 2002/475/JHA of June 13, 2002 on combating terrorism and the EU Counter-Terrorism Strategy of November 30, 2005, Doc. 14469/4/05 REV 4. In the period between 1996 and 2011, the Court has found 470 violations of Article 3 ECHR by Russia, 407 by Turkey, 102 by the Ukraine and 72 by the Republic of Moldova;

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France, Italy and the UK, the European Court has recently found violations of Article 3, both in relation to practices at home and in relation to the principle of non-refoulement.64 On the other hand, the Council of Europe has successfully incorporated all former fascist and communist States of Europe with only one exception, Belarus, and has subjected them to the most effective international system of human rights monitoring worldwide. Apart from Belarus, Europe is today a death penalty-free zone, and the European Union is actively and successfully promoting the abolition of this inhuman punishment on the global level. Corporal punishment has been prohibited and abolished as a judicial or disciplinary sanction in all Council of Europe member States, and much progress has been made in fighting domestic and other forms of violence by private actors.65 In some EU member States, above

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see for example Kalashnikov v Russia (judgment of July 15, 2002), Ilascu and Others v. Moldova and Russia (Grand Chamber judgment of July 8, 2004), Khashiyev and Akayeva v. Russia (judgment of February 24, 2005), Romanov v. Russia (judgment of October 20, 2005), Bazorkina v. Russia (judgment of July 27, 2006), Maslova and Nalbandov v. Russia (judgment of January 24, 2008), Lyanova and Aliyeva v. Russia (judgment of October 2, 2008), Polonskiy v. Russia (judgment of March 19, 2009), Khodzhayev v. Russia (judgment of May 12, 2010, not final), Khaydarov v Russia (judgment of May 20, 2010, not final yet), Preminiy v. Russia (judgment of February 10, 2011), Anayev and Others v. Russia (judgment of January 10, 2012), Aksoy v Turkey (judgment of December 18, 1996), Aydin v. Turkey (Grand Chamber judgment of September 25, 1997), Salman v. Turkey (Grand Chamber judgment of June 27, 2000), Jabari v Turkey (judgment of June 11, 2000), Bati and Others v. Turkey (judgment of June 3, 2004), Öcalan v. Turkey (Grand Chamber judgment of May 12, 2005), Opuz v Turkey (judgment of June 9, 2009), Varnava and Others v. Turkey (Grand Chamber judgment of September 18, 2009), Perişan and Others v. Turkey (May 20, 2010), Ciğerhun Öner v. Turkey (No.2) (judgment of November 23, 2010), Cyprus v. Turkey (judgment of May 10, 2011), Poltoratskiy v Ukraine (judgment of April 29, 2003), Nevmerzhitsky v. Ukraine (judgment of April 5, 2005), Ukhan v Ukraine (judgment of December 18, 2008), Baysakov and Others v. Ukraine (judgment of February 18, 2010), Davydov v. Ukraine (judgment of July 1, 2010); Modârcă v. Moldava (judgment of May 10, 2007); for statistics see European Court of Human Rights, The European Court in Facts and Figures, January 2012; European Court of Human Rights, Overview 1959-2011, February 2012. See for example Sławomir Musiał v. Poland (judgment of January 20, 2009), Florea v. Romania (judgment of September 14, 2010), El Shennawy v. France (January 20, 2011), M.S.S v. Belgium and Greece (Grand Chamber judgment of January 21, 2011), Sufi and Elmi v. the UK (judgment of February 2, 2011), Stanev v. Bulgaria (Grand Chamber judgment of January 17, 2012), Hirsi Jamaa and Others v. Italy (Grand Chamber judgment of February 23, 2012). See Convention on preventing and combating violence against women and domestic violence (adopted on April 7, 2011).

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all in the Nordic countries, torture seems to have been eradicated in practice and the conditions of detention are among the best in the world.66 Even in the fight against global terrorism, the European Union, despite its close cooperation with the US, followed a policy of adhering to international human rights standards, above all the absolute prohibition of torture and other forms of ill-treatment.

The Development of the Prohibition of Torture and Other Forms of Ill-treatment in the United States since World War II The United States has been a driving force in the establishment of the United Nations and the Organization of American States (OAS) as well as in their respective human rights instruments and procedures. As chair of the UN Commission of Human Rights, Eleanor Roosevelt played a decisive role in the drafting of the UDHR. However, already in the 1950s the US Government started to follow a policy of “American exceptionalism”. In essence, this means that US politicians were (and some still are) convinced that international human rights standards had only been developed for others to be followed, but not for the US. As Stanford scholar Allen Weiner noted in a recent article, the goal of international human rights was “to get the rest of the world to adopt American standards of human rights”.67 While the US State Department pursues an active bilateral and multilateral human rights foreign policy,68 the US is extremely reluctant to ratify international or regional human rights treaties and to subject itself to external monitoring. Contrary to most European States, which are parties to most of the core UN and Council of Europe human rights treaties and monitoring procedures,69 the US only ratified the International Covenant on Civil and Political Rights (CCPR), the Convention against Torture (CAT) and the Racial Discrimination Convention (CERD). The US, 66

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See, e.g., the conclusions of the UN Special Rapporteur after a fact-finding mission to Denmark and Greenland in Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Addendum - Mission to Denmark, February 18, 2009, UN Doc. A/HRC/10/44/Add.2. Allen S. Weiner, “The Protection of Human Rights in the USA,” Austrian Review of International and European Law, Vol. 16 (forthcoming). See, e.g., the annual human rights reports of the US Department of State assessing the human rights situation in all countries of the world available at http://www.state.gov/j/ drl/rls/hrrpt/. See United Nations Treaty Collection available at http://treaties.un.org/; International Criminal Court website www.icc-cpi.int/.

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therefore, is not party to the following core UN human rights treaties: the International Covenant on Economic, Social and Cultural Rights (CESCR),70 the Convention on the Elimination of Discrimination against Women (CEDAW),71 the Convention on the Rights of the Child (CRC),72 the Convention on Migrant Workers (CMW),73 the Convention on Enforced Disappearances (CED),74 and the Convention on the Rights of Persons with Disabilities (CRPD).75 In addition, the US has not ratified the American Convention on Human Rights (ACHR),76 its additional protocols in the area of economic, social and cultural rights77 and on the abolition of the death penalty,78 the Inter-American Convention to Prevent and Punish Torture,79 the Inter-American Convention on Forced Disappearance of Persons,80 the Rome Statute of an International Criminal Court (ICC),81 the Optional Protocol to the Convention against Tor70 71 72 73 74 75

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The CESCR of 1966 has been ratified by a total of 160 States, including all European States. The CEDAW of 1979 has been ratified by a total of 187, including all European States. The CRC has been ratified by 193 States, i.e. all UN member States with the only exception of Somalia and the US. Apart from Albania, Azerbaijan and Bosnia and Herzegovina, the CMW of 1990 has not been ratified by any European State. So far, the CED of 2006 has been ratified by a total of 31 States. It has been adopted by the UNGA on December 20, 2006 without a vote (UN Doc. A/RES/61/177). The CRPD of 2006 has already been ratified by a total of 111 States, including all European States with the exception of Albania, Andorra, Belarus, Estonia, Finland, Georgia, Greece, Iceland, Ireland, Lichtenstein, Malta, the Netherlands, Norway, Poland, the Russian Federation, and Switzerland. The ACHR of 1969 has been ratified by a total of 24 of the 35 member States of the OAS. Antigua and Barbuda, Bahamas, Belize, Canada, Guyana, St. Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, the United States and Cuba are not parties to the ACHR. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, adopted art San Salvador, El Salvador, on November 17, 1988. Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted at Asunción, Paraguay, on June 8, 1990. Inter-American Convention to Prevent and Punish Torture, adopted at Cartagena de Indias, Colombia, on December 9, 1985. Inter-American Convention on Forced Disappearance of Persons, adopted at Belém do Pará, on June 9, 1994. The ICC-Statute has been ratified by a total of 120 States, including all European States with the exception of Armenia, Azerbaijan, Belarus, Monaco, the Russian Federation, Turkey and Ukraine. Under the Bush-Administration, the US has even been engaged in an active and very hostile campaign against the ICC.

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ture (OPCAT),82 the 1st OP to the CCPR,83 nor any other instrument or declaration providing for respective international monitoring procedures. But even the few international treaties to which the US is a party, including the CCPR and CAT, have been ratified by the US only with far-reaching reservations, even in relation to the absolute and non-derogable prohibition of torture. Upon ratification of the International Covenant on Civil and Political Rights on 8 June 1992, the US reserved the right to impose capital punishment for crimes committed by persons below 18 years of age, contrary to Article 6(5) and considered itself bound by Article 7 only “to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States”.84 Many other States parties, notably from Europe (Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, Sweden) objected in fairly strong terms to these reservations and considered them as incompatible with the object and purpose of the Covenant, taking into account the non-derogable nature of the rights to life and human dignity.85 The Human Rights Committee also strongly criticized these reservations as incompatible with the Covenant and, therefore, as invalid during the consideration of the initial US State report in March 1995.86 Shortly before, on 2 November 1994, the Committee had adopted a General Comment on issues relating to reservations in which it held that provisions in the Covenant that represent customary international law and even peremptory norms, such as the prohibition of torture, cruel, inhuman or degrading treatment or punishment, may not be subject to reservations and that such reservations are, therefore, invalid.87

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The OPCAT of 2002 has been ratified by a total of 62 States, including all European States with the exception of Andorra, Austria, Belarus, Belgium, Finland, Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Monaco, Norway, Portugal, the Russian Federation, San Marino and Slovakia. The 1st OP to the CCPR of 1966, which is the legal basis for individual complaints to the UN Human Rights Committee, has been ratified by a total of 114 States, including all European States with the exception of Monaco, Switzerland and the United Kingdom. For the text of the reservations see Manfred Nowak, U.N. Covenant on Civil and Political Rights – CCPR Commentary, 2nd ed. N.P. Engel, Kehl/Strasbourg/Arlington 2005, p. 963. For the texts of these objections see Nowak, 2005, note 84, p. 970f. See UN Docs. CCPR/C/81/Add.4; A/50/40, Vol. I, §§ 279 and 292; see also Nowak, 2005, note 84, XXIX with further references, and p. 145. General Comment 24/52 of November 4, 1994, § 8, see Nowak, 2005, note 84, XXXff.. and 1123ff.

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Rather than complying with its obligation to bring its domestic law and practice in line with its international obligations, the United States, upon ratification of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on 21 October 1994, reiterated in a reservation that the term “cruel, inhuman or degrading treatment or punishment” in Article 16 CAT should be interpreted in line with the 5th, 8th and 14th Amendment to the US Constitution. In addition, the US made a number of interpretative declarations in relation to the definition of torture and other provisions of CAT.88 Again, other States parties, most notably Sweden and the Netherlands, objected to this reservation as being incompatible with the object and purpose of the Convention, and the Committee against Torture also explicitly considered this reservation a violation of CAT.89 The question, therefore, arises how the term “cruel and unusual punishment” in the 8th Amendment to the US Constitution has been applied in the US practice and whether this practice is in conformity with the respective US obligations under the CCPR and CAT. In 1910, the US Supreme Court for the first time overturned a judicial punishment as constituting cruel and unusual punishment. It held in Weems v. United States that a punishment called “cadena temporal”, which mandated “hard and painful labor”, shackling for the duration of incarceration and permanent civil disabilities, violated the 8th Amendment.90 In 1958, Chief Justice Earl Warren held in Trop v. Dulles that the 8th Amendment must draw its meaning from the “evolving standards of decency” that mark the progress of a maturing society.91 Although this test, which is similar to the “living instrument” test of the European Court of Human Rights, has been applied in a few cases, such as prohibiting corporal punishment in the Arkansas prison system,92 it had no strong influence on the later jurisprudence of the Supreme Court. In Furman v. Georgia, the US Supreme Court in 1972 came fairly close to finding capital punishment as cruel and unusual, when it overturned by a narrow 5:4 majority a death sentence for murder as discriminating against the black and the poor. It developed four principles for the definition of cruel and unusual punishment: A punishment must not by its severity be degrading to human dignity such as torture; it should not be inflicted in a wholly arbitrary fashion; it should 88 89 90 91 92

For the text of these reservations and understandings see Nowak/McArthur, CATCommentary, note 46, 1278ff. Cf. Nowak and McArthur, 2008, note 46, p. 559 and 1280f. UN Doc. A/55/44, § 179(b). Weems v. United States, 217 U.S. 349 (1910). Trop v. Dulles, 356 U.S. 86 (1958). Jackson v. Bishop, an Eighth Circuit decision of 1968.

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not be clearly and totally rejected throughout society; and it should not be patently unnecessary.93 In 1978, the Supreme Court held in Wilkerson v. Utah that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment regardless of the crime.94 However, many States continued to execute persons who had committed a capital crime under the age of 18, or had mental disabilities, and to use methods that at that time were already considered by the UN Human Rights Committee as cruel and inhuman treatment in violation of Article 7 CCPR, such as execution by gas asphyxiation.95 The death row phenomenon in US prisons was in general regarded as running counter the prohibition of torture. The ECtHR, for instance, held in 1989 that the death row phenomenon constituted a violation of Article 3 with the consequence that European States were therefore prohibited from extraditing persons to the United States who are at risk of capital punishment and/or execution.96 It was only in 2002 that the US Supreme Court held that the execution of a mentally handicapped person violated the 8th Amendment,97 and in 2005 that the execution of juvenile offenders was to be considered as a cruel and unusual punishment.98 Since then the Supreme Court has missed every further opportunity, most recently in Kennedy v. Louisiana, to declare capital punishment as such a cruel, inhuman and degrading punishment.99 Thus, the “standard of decency” seems not to have evolved in the American society and politics in the way it was originally envisaged by Chief Justice Earl Warren. On the contrary, the American criminal justice system and philosophy is still based on a strictly punitive and retributive approach, and US politicians seem to compete on who is most “tough on crime”. The US remains the country with the highest incarceration rate in the world, roughly 7 times higher than Western Europe.100 With over 2.2 million prisoners in 2011, the US hous93 94 95 96 97 98 99 100

Furman v. Georgia, 408 U.S. 238 (1972), judgment delivered by Justice Brennan. Wilkerson v. Utah, 99 U.S. 130 (1978) Cf., e.g., the case of Ng v. Canada, No. 469/1991, § 16.4; cf. Nowak, 2005, note 84, 171. See, e.g., ECtHR, Soering v. UK (judgment of 7 July 1989). Atkins v. Virginia, 536 U.S. 304 (2002). Roper v. Simmons, 543 U.S. 551 (2005). Kennedy v. Louisiana, 554 U.S. 407 (2008). The Court ruled that the death penalty for the crime of child rape was excessive “where the victim’s life was not taken”. While there are currently 730 prisoners per 100,000 inhabitants in the US, and 525 in the Russian Federation, the incarceration rate in the EU is only a little higher than 100. The Nordic countries known for the most advanced system of rehabilitation of offenders and the best conditions of detention in the world have also the lowest incarceration rates (Denmark 74, Norway 73, Sweden 70, Finland 59 and Iceland 47) and very low

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es more than one fifth of all prisoners in the world, even more than the two most populous countries, China (1.6 million) and India (380,000), together. In addition, the conditions of detention in US prisons and the excessive use of force by American law enforcement officers, above all the misuse of electroshock weapons and chemical sprays, the cruel use of mechanical restraints, the practice of chain-gangs, sexual misconduct and other abuses in isolation units, have often been denounced as torture or other forms of cruel, inhuman and degrading treatment101 without US courts finding violations of the 8th Amendment. Moreover, the US is among the countries with the highest number of executions in the world, only outnumbered by China, Iran, Saudi Arabia and Iraq.102 With such a punitive criminal justice system, it is not surprising that the recidivism rate and the overall crime and violence rate in the country are extremely high. Hence, as outlined above, while international human rights obligations never played an important role in US human rights policies and practice, until the 1970s federal civil rights legislation and a liberal Supreme Court had developed and applied comparatively high standards in various fields, including the interpretation of the 8th Amendment.103 Yet, during the Reagan Administration, the political climate began to shift, and changes in the composition of the Supreme Court led to a retreat in the domestic protection of human rights.104

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recidivism rates. See International Centre for Prison Studies (ICPS) at Essex University, World Prison Brief 2011. Cf., e.g., the concluding observations of the UN Human Rights Committee, and the UN Committee against Torture in the State reporting procedure in relation to the US. UN Docs. CCPR/C/USA/CO/3/Rev.1, CAT/C/USA/CO/2 and Observations/Comments A/55/44(SUPP); See also the recommendations of the UN Human Rights Council in the Universal Periodic Review Procedure in relation to the US. See Amnesty International and Human Rights Watch, Contributions for the Summary of Stakeholder’s information with regard to the Universal Periodic Review of the US. Downloaded from http://www. ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx (accessed February 2014). See further Amnesty International, Annual Report 2011. Downloaded from http://www.amnesty.org/en/region/usa/report-2011#section-155-8 (accessed February 2014); and Human Rights Watch, Annual World Report 2012. Downloaded from http:// www.hrw.org/world-report-2012 (accessed February 2014). See Amnesty International, Death Sentences and Executions 2013. London 2014. Downloaded www.amnesty.org/en/library/asset/ACT50/001/2014/en/652ac563-3979-43e2-61 21-6c4919e7258/act500012014en.pdf (accessed February 2014). See discussion above. For a comprehensive analysis of domestic human rights policies in the US see, e.g., Cynthia Soohoo, Catherine Albisa and Martha F. Davis (eds.), Bringing Human Rights Home – A History of Human Rights in the United States, University of Pennsylvania, Philadel-

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The most far-reaching attempt to undermine the absolute prohibition of torture and ill-treatment in the history of the United States was, however, launched during the so-called “war on terror” by the Bush Administration. On the basis of flawed “torture memos”, prepared by the Office of Legal Counsel of the Department of Justice, the US Government developed “enhanced interrogation methods”, a global system of “extraordinary rendition flights” and CIA secret detention facilities, where foreign terrorist suspects were systematically tortured and deprived of all legal remedies, including habeas corpus.105 The extensive use of presidential powers by President Bush as Commanderin-Chief in his “war on terror”, unprecedented in US history, also seriously undermined the system of “checks and balances” for which the US Constitution has been well-known for centuries. Not only did Congress fail to keep checks on executive power, but also the Supreme Court was extremely slow in reacting to the systematic human rights abuses of the Bush Administration.106 In fact, the media and non-governmental human rights organizations remained the only real checks and balances towards the authoritarian attitudes of the Bush Administration, which openly stated that American national security interests were more important than international or domestic human rights, including the absolute prohibition of torture and other forms of ill-treatment. Although President Obama reversed some of the most notorious practices of his predecessor, he failed in closing down the infamous detention facilities at Guantánamo Bay, in investigating past human rights violations, providing

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phia 2009. See also the Restoring the Conscience of a Nation: A Report of the U.S. Commission on Civil Rights, edited by the Leadership Conference on Civil Rights Education Fund, Washington, D.C. March 2009. For a more detailed analysis of the illegal practices during Bush’s “war on terror” see Niels Bjerre-Poulsen, “The Loaded Gun: The Obama Administration and the Legacy of George W. Bush’s “’ War on Terror’ “, published in this volume, with further references. See also the joint UN studies on the situation of detainees in Guantánamo Bay, UN Doc. E/CN.4/2006/120, and on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, UN Doc. A/HRC/13/42 (February 19, 2010). See further Manfred Nowak, “What Practices Constitute Torture? U.S. and UN Standards,” Human Rights Quarterly, Vol. 28, 2006 p. 809-841; and Manfred Nowak, Moritz Birk and Tiphanie Crittin, “The Obama Administration and Obligations Under the Convention Against Torture,” Transnational Law & Contemporary Problems, Vol. 20, 2011, p. 34-66 with further references. See, e.g., Matthew Crenson and Benjamin Ginsberg, Presidential Power; Unchecked and Unbalanced. Norton, New York 2007; and Charlie Savage, Takeover; The Return of the Imperial Presidency and the Subversion of American Democracy. Little brown, New York 2007.

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justice to the victims of torture and extraordinary rendition and in bringing the perpetrators of torture and enforced disappearances to justice.107

The Development of the Prohibition of Torture and Other Forms of Ill-treatment in Latin America since World War II The adoption of the American Convention on Human Rights (“Pact of San José”, Costa Rica) in 1969 with high standards of human rights, including the right to physical, mental and moral integrity and human dignity in Article 5, coincided with the beginning of one of the worst periods in Latin American history: the establishment of military dictatorships in the majority of countries in Central and South America, based on the ideology of “national security” in close cooperation with the United States. The military juntas in Brazil, Uruguay, Chile, Argentina, El Salvador, Guatemala, Honduras and other countries of the region engaged in systematic policies of arbitrary detention, enforced disappearances, torture and summary executions of members of the political opposition and their supporters.108

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See Nowak et al, 2011, note 105. Cf., e.g., the well-known cases decided by the UN Human Rights Committee against Uruguay: Massera v. Uruguay (No.5/1977), Bleier v. Uruguay (No. 30/1978), Miguel Angel Estrella v. Uruguay (No. 74/1980), Quinteros Almeida v. Uruguay (No.107/1981), Hiber Conteris v. Uruguay (No. 139/1983), Rodríguez v. Uruguay (No.322/1988); the reports of the UN Ad Hoc Working Group to inquire into the situation of human rights in Chile, established in 1975, UN Docs A/10285 (1975), E/CN.4/1188 (1976), A/31/253 (1976) and E/ CN.4/1221 (1977); various country-specific and annual reports of the Inter-American Commission on Human Rights on the situation of human rights in Argentina, Chile, Paraguay, Uruguay and El Salvador: OEA/Ser. L/VII.34 doc. 21 corr. 1 (1974), OEA/Ser. L/V/II.37 doc. 19 corr. 1 (1976), OEA/Ser.L/V/II.40 doc. 10 (1977), OEA/Ser.L/V/II.43 doc. 19 corr.1 (1978), OEA/Ser.L/V/II.43 doc. 13 corr. 1 (1978), OEA/Ser.L/V/II.43 doc. 21 corr. 1 (1978), OEA/Ser.L/V/II.46 doc. 23 rev. 1 (1978), OEA/Ser.L/V/II.49 doc. 19 corr. 1 (1980), OEA/Ser.L/V/II.66 doc. 17 (1985); These gross and systematic violations of human rights are also well documented in human rights literature: cf., e.g., Cecilia Medina Quiroga, The Battle of Human Rights – Gross, Systematic Violations and the Inter-American System. Martinus Nijhoff Publishers, Dordrecht 1988; Ermacora, 1994, p. 223f; Amnesty International, Disappearances and political killings: human rights crisis of the 1990s. Amsterdam 1994; Nigel S. Rodley, “United Nations actions procedures against ‘disappearances, summary or arbitrary executions, and torture’,” Human Rights Quarterly, Vol. 8(4) 1986, p. 700-730.

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In reaction to these practices, Amnesty International launched a worldwide campaign against torture on Human Rights Day in 1972.109 The widely documented cases of torture and enforced disappearances in Chile after the violent military coup of General Augusto Pinochet Ugarte on 11 September 1973 turned out to be the starting point for a number of far-reaching measures and reforms in international human rights law.110 In November 1973, the UN General Assembly expressed serious concerns about these torture practices and put the question of torture and cruel, inhuman or degrading treatment or punishment as a standing item on its agenda.111 In spring 1974, the UN Human Rights Commission, in a telegram addressed to the Chilean Government, expressed its concerns about torture which, at that time, constituted an unprecedented step in “interfering” with the “domestic jurisdiction” of a UN member State. One year later, the Commission established a Working Group to investigate the human rights situation in Chile,112 and in December 1975 the UN General Assembly adopted the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.113 Two years later, the General Assembly formally requested the Commission on Human Rights to draft the text of a binding Convention against Torture on the basis of the 1975 Declaration.114 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted on 10 December 1984115 and entered into force on 26 June 1987. In reaction to the practice of enforced disappearances in Argentina, the UN Commission on Human Rights established in 1980 its first thematic special procedure, the UN Working Group on Enforced and Involuntary Disappearances.116 Two years later, the Special Rapporteur on Arbitrary and Summary Executions was established, followed by the Special Rapporteur on Torture in 1985.117 Parallel to the United Nations, the gross and systematic violations of human rights, above all torture and enforced disappearances, in the Latin American 109

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See Amnesty International, Report on Torture, London 1973. Downloaded from http:// www.amnesty.org/fr/library/asset/ACT40/001/1973/en/d1d865a7-8424-4bd3-a90daaee85622efe/act400011973eng.pdf (accessed February 2014). Cf. Nowak and McArthur, 2008, note 46, 3. GA Res. 3059 (XXVIII) of November 2, 1973. CHR Res. 8 (XXXI) of February 27, 1975. GA Res. 3452 (XXX) of December 9, 1975. GA Res. 32/62 of December 8, 1977. GA Res. 39/46 of December 10, 1984. CHR Res. 20 (XXXVI) of February 29, 1980. CHR Res. 1982/35 of May 7, 1982 and 1985/33 of March 13, 1985.

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“national security” dictatorships of the 1970s and 1980s also prompted the Organization of American States (OAS) to further develop its human rights instruments and mechanisms. In various country-specific reports and in deciding on numerous individual complaints, the Inter-American Commission on Human Rights found a systematic practice of torture in countries such as Chile, Argentina, El Salvador, Uruguay, Paraguay or Guatemala.118 This prompted the OAS to adopt the Inter-American Convention to Prevent and Punish Torture in 1985 and the Inter-American Convention on Forced Disappearance of Persons in 1994.119 In addition, a Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted in 1990.120 Starting with the landmark judgment of Velásquez Rodriguez v. Honduras concerning enforced disappearances in 1988, the Inter-American Court of Human Rights developed a rich jurisprudence on gross violations of human rights, including torture and cruel, inhuman or degrading treatment or punishment.121 The Inter-American monitoring bodies have adopted a broad and 118

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OEA/Ser. L/VII.34 doc. 21 corr. 1 (1974), OEA/Ser. L/V/II.37 doc. 19 corr.1 (1976), OEA/ Ser.L/V/II.40 doc. 10 (1977), OEA/Ser.L/V/II.43 doc. 19 corr. 1 (1978), OEA/Ser.L/V/II.43 doc. 13 corr. 1 (1978), OEA/Ser.L/V/II.46 doc. 23 rev. 1 (1978), OEA/Ser.L/V/II.49 doc. 19 corr.1 (1980), OEA/Ser.L/V/II.53 doc. 21 rev. 2 (1981), OEA/Ser.L/V/II.66 doc. 17 (1985). Inter-American Convention to Prevent and Punish Torture, adopted at Cartagena de Indias, Colombia, on December 9, 1985, at the fifteenth regular session of the General Assembly; Inter-American Convention on Forced Disappearance of Persons, adopted at Belém do Pará, on June 9, 1994, at the twenty fourth regular session of the General Assembly. Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted at Asunción, Paraguay, on June 8, 1990, at the twentieth regular session of the General Assembly. See e.g.: Almnonacid-Arellano and Others v. Chile (judgment of September 26, 2006); Berenson-Mejía v Peru (judgment of November 25, 2004); Blanco-Romero et al. v. Venezuela (judgment of November 28, 2005); Bueno-Alves v. Argentina (judgment of May 11, 2007); Bulacio v. Argentina (judgment of September 18, 2003); Cantoral-Benavides v Peru (judgment of August 18, 2000); Castillo-Páez v. Peru (judgment of November 3, 1997); Castillo Petruzzi and Others v Peru (judgment of May 30, 1999); De la Cruz Flores v. Peru (judgment of November 18, 2004); Godínez-Cruz v. Honduras (judgment of January 20, 1989); Goiburú and Others v. Paraguay (judgment of September 22, 2006); Gómez-Paquiyauri Brothers v. Peru (judgment of July 8, 2004); Montero-Aranguren v. Venezuela (judgment of July 5, 2006); Hilaire and Others v. Trinidad and Tobago (judgment of June 21, 2002); Juvenile Reeducation Institute v. Paraguay (judgment of September 2, 2004); La Cantuta v. Peru (judgment of November 29, 2006); Loayza Tamayo v. Peru (judgment of September 17, 1997); Mack Chang v. Guatemala (November 25, 2003); Mapiripán Massacre v. Colombia (judgment of September 15, 2005); Moiwana Community v. Suriname (judgment of June 15, 2005); Montero-Aranguren v. Venezuela (judgment of July 5, 2006); Pueblo Bello Massacre v. Colombia (judgment of January

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flexible approach with regard to the protection of personal integrity and humane treatment, sometimes going even further than its international and regional counterparts. Thus, for instance, the Inter-American Commission was the first monitoring body to recognize rape as torture.122 Moreover, the Court has repeatedly held that torture generates State responsibility even if strict intentionality on the part of the person acting in an official capacity is missing and ordered a wide range of types of reparations.123 The combined efforts of the United Nations and the Organization of American States to denounce torture and other gross and systematic violations of human rights during the period of military dictatorships has contributed to a gradual dismantling of these regimes and a process of re-democratization as from the mid-1980s. The Latin American experience was also crucial for the global fight against impunity (“impunidad”) for gross human rights violations, in particular torture. The UN Convention against Torture 1984 and the InterAmerican Convention to Prevent and Punish Torture 1985 are the two first human rights treaties which explicitly require States parties to criminalize torture with appropriate penalties under domestic criminal law and to establish a comprehensive system of domestic jurisdiction, including universal jurisdiction, for this human rights crime.124 It is of more than symbolic significance that the British House of Lords ruled in 1999 on the basis of the UN Convention against Torture that General Pinochet, as former Head of State of Chile, had no immunity from extradition and prosecution after having been arrested in London on the basis of the principle of universal jurisdiction for torture.125 Nevertheless, only few of the major perpetrators of tor-

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31, 2006); Servellón-Garcia and Others v. Honduras (judgment of September 21, 2006); Suárez-Rosero v. Ecuador (judgment of November 12, 1997); Tibi v. Ecuador (judgment of September 7, 2004); Urrutia v. Guatemala (judgment of November 27, 2003); Vargas Areco v. Paraguay (judgment of September 26, 2006); Ximenes-Lopes v. Brazil (judgment of July 4, 2006). Inter-American Commission on Human Rights, Raquel Martí de Mejía v. Peru, Report No. 5/96, February 28, 1996. Velásquez-Rodríguez v Honduras (judgment of July 29, 1982); Servellón-Garcia and Others v. Honduras, op cit; Vargas Areco v. Paraguay op cit; For a detailed discussion of the IACtHR’s jurisprudence with regard to torture see Association for the Prevention of Torture and Center for Justice and International Law, Torture in International Law – A guide to jurisprudence. 2008, p. 93-123. Downloaded from http://www.apt.ch/ (accessed February 2014). Articles 4 to 9 CAT and Articles 3 to 14 of the Inter-American Convention to Prevent and Punish Torture. Judgment of March 24, 1999 of the Judicial Committee of the House of Lords in the case of R v. Bartle and the Commissioner of Police for the Metropolis, ex p. Pinochet. See, e.g.,

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ture, enforced disappearances and other gross and systematic human rights violations during the time of the military dictatorships have been brought to justice, and the fight against impunity is still high on the agenda in countries such as Argentina, Chile and Uruguay. The trauma of the military regimes led to a pro-human rights policy in most Latin American countries. Although prison conditions in Latin America are still among the worst in the world and torture has certainly not been eradicated in this region, as the case law of the Inter-American Commission and Court of Human Rights illustrates, Latin American and European governments are rightly being considered as pioneers in international human rights law and those who most actively determine the human rights agenda of the United Nations. Many more recent global initiatives, including the drafting and adoption of the Rome Statute for an International Criminal Court in 1998, the drafting and adoption of the Optional Protocol to the UN Convention against Torture (OPCAT) in 2002 and of the UN Convention for the Protection of All Persons from Enforced Disappearance in 2006 were strongly driven and supported by Latin American States. In addition, Latin America, with the exception of Guatemala and a few Caribbean States, is today a death penaltyfree zone.126

Conclusion Although torture as a legal method of extracting confessions had been eliminated from European criminal procedure codes during the 18th and early 19th centuries, its prohibition was not considered as a human right when the first constitutional bills of rights were drafted during the same period. None of the famous documents adopted during the American and French Revolutions and only

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Nowak and McArthur, 2008, note 49, 276 et seq. and 292 et seq.; Andrea Bianchi, “Immunity Versus Human Rights: The Pinochet Case,” EJIL, Vol. 10, 1999, p. 237–77; Phillipe J. Sands, “Turtles and Torturers: The Transformation of International Law,” NYUJ Intl’ L & Pol, Vol. 33, 2001, p. 527–59; Jan Klabbers, “The General, the Lords, and the Possible End of State Immunity,” ActScandJurisGent, Vol. 68, p. 85–95; Rebecca Evans, “Pinochet in London – Pinochet in Chile: International and Domestic Politics in Human Rights Policy,” Human Rights Quarterly, Vol.28, 2006, p. 207–44; Hazel Fox, “The Pinochet Case No. 3,” ICLQ, Vol. 48, 1999, p. 687–702. See Amnesty International, Death Penalty in 2010: Executing countries left isolated after decade of progress. Downloaded from http://www.amnesty.org/en/news-and-updates/ report/death-penalty-2010-executing-countries-left-isolated-after-decade-progress (accessed February 2014).

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very few constitutions of the 19th century127 enshrined an explicit prohibition of torture. This is surprising insofar as the manner how human beings were to be treated in the administration of criminal justice figured prominently in early human rights documents influenced by natural law, humanism and rationalism in the Age of Enlightenment. Already the English Bill of Rights of 1689 provided for a prohibition of excessive bail and of “cruel and unusual punishment”, a formulation still to be found in the 8th Amendment of the US Federal Constitution. What type of punishment was to be considered as “cruel and unusual” at that time was not further defined, but some constitutions of the 19th century do list specific examples, such as the prohibition of corporal and capital punishment, pillory and branding.128 The prohibition of torture and cruelty, as well as the right to be treated humanely as a concern of international law was first developed in the framework of the law of armed conflicts. Corresponding prohibitions can be found in Article 3 common to the four Geneva Conventions of 1949 and in similar provisions of modern international humanitarian law. This process of codification can be traced back to the well-known Lieber Code which was adopted in 1863 by President Abraham Lincoln in reaction to the cruelties of the American Civil War. Likewise, the horrors of the Nazi Holocaust prompted the UN Commission on Human Rights, chaired by the widow of another famous US President, Eleanor Roosevelt, to draft the Universal Declaration of Human Rights of 1948. The therein stipulated prohibition of “torture, cruel, inhuman or degrading treatment or punishment” as an independent human right in Article 5 was well placed between the prohibition of slavery and the right to recognition as a person before the law. The formulation of this right in the Universal Declaration and many later international and regional human rights treaties was influenced by the French Nobel Prize winner René Cassin, the Canadian director of the UN Division of Human Rights, John Humphrey, the Chilean law professor Hernan Santa Cruz, the Lebanese expert Charles Malik and other well- known personalities. Although the prohibition of torture and other forms of ill-treatment, similar to the prohibition of slavery, slave trade and servitude, was formulated in negative terms, it becomes clear from the drafting history and later developments of international human rights law that these two prohibitions are the most important examples of the then newly emerging universal right to human dignity and personal integrity 127 128

E.g. the Constitutions of Bayonne 1808, of Coahuila and Texas 1827, of Fribourg 1831 and the Turkish Constitution of 1876. See above, notes 8, 16 and 17. See, e.g. the German Constitution and the Austrian Draft Constitution of 1849, above notes 12 and 13.

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born in reaction to the barbarous acts of the Nazis which “have outraged the conscience of mankind”.129 While the Holocaust, committed by Europeans in Europe, was at the trigger for the development of the right to human dignity and the universal prohibition of torture as a peremptory norm of international law, European and American political thought and constitutional history played an equally important and mutually enriching role in the emergence of this universal legal and ethical norm. Historically speaking, the fight against cruel and inhuman (“unusual”) types of criminal punishment seemed to have been even more influential in the gradual development of the right to human dignity than the elimination of torture as a method to extract confessions. In the second half of the 20th century and even more during the first decade of the 21st century, the developments in Europe, North and Latin America were drifting in different directions. In order to avoid another World War and similar atrocities, Europeans created regional organizations, above all the Council of Europe and the European Union, based on the common values of pluralistic democracy, human rights and the rule of law. The European Convention on Human Rights and the EU Charter of Fundamental Rights, which both contain an absolute prohibition of torture and other forms of ill-treatment, including the death penalty, today play a more important role in the protection of human rights in Europe than the respective constitutional bills of rights. All former fascist and communist States, with the only exception of Belarus, have been gradually integrated into the Council of Europe and, thereby subjected to the binding jurisprudence of the European Court of Human Rights and the regular preventive visits by the European Committee for the Prevention of Torture. Cruel and inhuman punishments, including all forms of corporal and capital punishments, have been successfully eliminated from European law and practice, and the European Union is at the forefront of the universal campaign to abolish capital punishment. Indeed, human rights violations, including torture and other forms of ill-treatment, continue to be practiced in some European countries, most notably in the Russian Federation, Turkey and the Ukraine, but they are subject to strict control by a variety of international and regional human rights monitoring mechanisms. For Latin America, the systematic practice of torture, summary executions and enforced disappearances during the time of the military dictatorships of the 1970s seem to constitute an almost as traumatic experience as the Nazi Holocaust for Europe. It triggered a strong response by the United Nations and the Organization of American States (OAS) which led, inter alia, to the adoption of the UN Convention against Torture (CAT) in 1984, the Inter129

Preamble to the Universal Declaration of Human Rights of December 10, 1948.

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American Convention to Prevent and Punish Torture in 1985, the Inter-American Convention on Forced Disappearance of Persons in 1994 and the UN Convention on the Protection of All Persons from Enforced Disappearance (CED) in 2006. In addition, the gross and systematic human rights violations during the “national security” dictatorships in Latin America contributed to the development and strengthening of international and regional human rights monitoring by independent expert bodies, most notably the Inter-American Commission and Court of Human Rights as well as the special procedures of the then UN Commission on Human Rights. The creation of the UN Working Group on Enforced Disappearances and of the UN Special Rapporteurs on Summary Executions and on Torture between 1980 and 1985 were a direct reaction of the Commission to these abhorrent practices in countries like Chile, Argentina and Uruguay. Furthermore, the international struggle against impunity (“impunidad”) for gross and systematic human rights violations and crimes against humanity, which resulted in the legal obligation of States parties to CAT and CED to criminalize torture and enforced disappearances and which led to the establishment of the International Criminal Court on the basis of the Rome Statute 1998, was strongly influenced by the families of the victims of Latin American dictatorships who still continue to call for criminal justice, even 40 years after these crimes had been committed. Many Latin American politicians in power today have themselves been victims of torture and other human rights violations during the 1970s. This explains why the Group of Latin American States plays such an important role in the United Nations to advance the international system for the protection of human rights, including the universal abolition of torture and capital punishment. With the exception of Guatemala and a few Caribbean States, Latin America is today a death penalty free zone. Although the prison conditions in most Latin America States are deplorable and torture continues to be practiced in many countries in the context of the ordinary criminal proceedings, the situation has considerably improved as compared to the time of the military dictatorships. The fact that all Latin American States are parties to the Rome Statute of the International Criminal Court also sends a strong signal to prevent future military coups. Although the United States was crucial in the founding of the human rights protection mechanisms of the United Nations and the OAS, the US Government already in the 1950s started to follow a policy of “US exceptionalism”. While the annual US State Department Human Rights Reports critically assess the situation of human rights in all countries of the world, the US has one of the worst records of ratification of international and regional human rights treaties worldwide. Even the flagship of the OAS, the American Con-

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vention on Human Rights of 1969, which has been ratified by all Latin American countries with the exception of Cuba, has not yet been ratified by the US, which consequently means that the Inter-American Court of Human Rights has no jurisdiction in relation to human rights violations in the US. Similarly, the strong opposition of the US to the International Criminal Court not only prevents the Court from exercising jurisdiction in relation to crimes committed on US territory, it also protects American citizens, including members of the US military, CIA agents and personnel of private security companies, from being held accountable for crimes committed in Iraq, Afghanistan, Guantánamo Bay and many other places around the world. Some of the most widely ratified human rights treaties of the United Nations, including the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination against Women and the Covenant on Economic, Social and Cultural Rights, have not been accepted as legally binding by the US. Other UN treaties, such as the International Covenant on Civil and Political Rights and the Convention against Torture, were only accepted with far-reaching reservations which are contrary to the object and purpose of those treaties. Some of these reservations even relate to the right to life and the absolute prohibition of torture, cruel, inhuman or degrading treatment or punishment. In essence, the US accepted the obligation not to practice torture and ill-treatment only to the extent that the international legal term “cruel, inhuman or degrading treatment or punishment” is interpreted in the same way as the US understanding of “cruel and unusual treatment or punishment”. This reservation, of course, runs counter to the very purpose of the international protection of human rights. Until the 1970s, the US Supreme Court has interpreted the relevant provisions of the US Constitution in a fairly liberal way, by holding that the 8th Amendment must draw its meaning from the “evolving standards of decency” that mark the progress of a maturing society. While in Western Europe modern theories of criminal sociology aimed at the rehabilitation and resocialization of criminal offenders had been developed around the same time which had a strong influence on European societies and led to a growing awareness that harsh prison conditions, corporal and capital punishment amount to inhuman or degrading treatment or punishment, the US Supreme Court in 1978 still considered only medieval methods of drawing and quartering, public dissection, burning alive or disembowelment as cruel and unusual punishment. In the very same year, the European Court of Human Rights, on the basis of regarding the ECHR as a “living instrument” to be interpreted in light of modern developments of criminal justice, held that corporal punishment was no longer acceptable. Shortly thereafter, it found the “death row phenomenon” in the US so degrading that European States

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were prevented to extradite criminal offenders to the US if they faced there the death penalty and execution. Similarly, the UN Human Rights Committee ruled that Canada was not allowed to extradite a criminal offender to the US because gas asphyxiation as a method of execution in California constituted cruel and inhuman punishment. Hence, it can be concluded that the “standard of decency” seems not to have evolved in the American society and politics in the way originally envisaged. Apart from prohibiting the execution of persons with mental disabilities and juvenile offenders as a cruel and unusual punishment, the US Supreme Court, with a highly conservative majority since the time of the Reagan Administration, has done very little to hold the American criminal justice system to account to any “evolving standards of decency”. As a result of the US policy of “exceptionalism”, international monitoring of US human rights standards is reduced to non-binding decisions on individual complaints by the InterAmerican Commission on Human Rights,130 as well as concluding observations and non-binding recommendations by various UN bodies in the State reporting procedure. In the course of the Universal Periodic Review in 2010, the UN Human Rights Council recommended the closure of Guantanamo as well as addressing the problems of sexual violence and overcrowding in correction and detention facilities and ensuring treatment in maximum security prisons in conformity with international law.131 That the so-called “war on terror” launched by the Bush Administration in reaction to the terrorist attacks of 11 September 2001 was capable to undermine most domestic and international “standards of decency”, the rule of law and human rights, including the absolute prohibition of torture, cruel, inhuman or degrading treatment or punishment, can only be explained by a combination of different factors: “American exceptionalism” and a long tradition of American politics to reject international human rights criticism as undue interference with domestic affairs, together with the erosion or at least non-development of domestic human rights standards since the 1970s, and the non-functioning of the system of “checks and balances” due to the exten130

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The Inter-American Commission is regularly finding violations of OAS human rights standards in relation to executions, see for example White and Potter v United States, IACommHR, Resolution 23/81, Case 2141, March 6, 1981; Roach and Pinkerton v United States, IACommHR, Resolution 3/87, Case 9647, September 22, 1987; The Haitian Centre for Human Rights and Others v United States, IACommHR, Case 10675, Report No. 51/96, March 13, 1997. See, inter alia, recommendations 92.155-92.159, 92.162, 92.163 and 92.177 of the Report of the Working Group on the Universal Periodic Review - United States of America of January 4, 2011, UN Doc. A/HRC/16/11.

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sive use of presidential powers by George W. Bush as Commander-in-Chief of the “war on terror”. The systematic practice of arbitrary detention, torture and other forms of ill-treatment against suspected terrorists in Guantánamo Bay, Bagram, Abu Ghraib and other notorious US military camps around the world, the operation of a global spider-web by the CIA of clandestine “extraordinary rendition” flights, “black sites” and other secret places of detention is unprecedented in US history and seriously undermined the US reputation as a champion of human rights. There was great hope around the world that the “change-policy” of President Obama would also lead to a fundamental change in US human rights politics and practice aimed at establishing again an evolving “standard of decency” and, thereby, repairing the reputation destroyed by his predecessor. The continuing existence of the notorious detention facilities at Guantánamo Bay, including military tribunals, constitutes only the most obvious symbol that Obama failed to achieve this fundamental human rights change. The systematic human rights violations and crimes committed by the Bush Administration seemed to have been traumatic for the rest of the world, but obviously not traumatic enough for the US Government and the US society to thoroughly investigate past crimes, fight impunity, bring justice to the victims, learn from the mistakes of the past, bring an end to “American exceptionalism” and subject US politics to international human rights standards and monitoring. After all, most victims of the crimes of the Bush Administration were not US citizens, but foreign Islamic terrorist suspects…

Literature and Sources Amnesty International, Report on Torture, London 1973. Downloaded from http:// www.amnesty.org/fr/library/asset/ACT40/001/1973/en/d1d865a7-8424-4bd3a90d-aaee85622efe/act400011973eng.pdf (accessed February 2014). Amnesty International, Disappearances and political killings: human rights crisis of the 1990s. Amnesty International, Amsterdam 1994. Amnesty International, Death Penalty in 2010: Executing countries left isolated after decade of progress. Downloaded from http://www.amnesty.org/en/news-and-updates/report/death-penalty-2010-executing-countries-left-isolated-after-decadeprogress (accessed February 2014). Amnesty International and Human Rights Watch, Contributions for the Summary of Stakeholder’s information with regard to the Universal Periodic Review of the US. Downloaded from http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx (accessed February 2014).

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Amnesty International, Annual Report 2011. Downloaded from http://www.amnesty. org/en/region/usa/report-2011#section-155-8 (accessed February 2014). Amnesty International, Death Sentences and Executions 2013. London 2014. Downloaded www. amnesty.org/en/library/asset/ACT50/001/2014/en/652ac563-3979-43e2-6121-6c4919e7258/ act500012014en.pdf (accessed February 2014).

Association for the Prevention of Torture and Center for Justice and International Law, Torture in International Law – A guide to jurisprudence, 2008, p. 93-123. Downloaded from http://www.apt.ch/ (accessed February 2014). Bianchi, Andrea, “Immunity Versus Human Rights: The Pinochet Case,” EJIL, Vol. 10, 1999, p. 237–77. Böckenförde, Ernst-Wolfgang, “Menschenwürde Als Normatives Prinzip: Die Grundrechte in Der Bioethischen Debatte,” Juristenzeitung, Vol. 58(17), 2003, p. 809-815. Crenson, Matthew and Benjamin Ginsberg, Presidential Power; Unchecked and Unbalanced. Norton, New York 2007. Dijk, Pieter van, Fried van Hoof, Arjen van Rijn and Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights. Intersentia, AntwerpenOxford 2006. Enders, Christoph, Die Menschenwürde in der Verfassungsordnung: zur Dogmatik des Art. 1 GG. Mohr Siebeck, Tübingen 1997. Ermacora, Felix, Menschenrechte in der sich wandelnden Welt, Band I. Österreichische Akademie der Wissenschaften, Wien 1974. European Commission of Human Rights, “Report on the applications of Denmark, France, Netherlands, Norway and Sweden against Turkey and the conclusion of a friendly settlement,” International Legal Materials, Vol. 25(2), March 1986, p. 308-318. Evans, Malcolm and Rod Morgan, Combating Torture in Europe – The work and standards of the European Committee for the Prevention of Torture. Council of Europe 2002. Evans, Rebecca, “Pinochet in London – Pinochet in Chile: International and Domestic Politics in Human Rights Policy,” Human Rights Quarterly, Vol. 28, 2006, p. 207–44. Fox, Hazel, “The Pinochet Case No. 3,” ICLQ, Vol. 48, 1999, p. 687–702. Glendon, Mary Ann, A World Made New – Eleanor Roosevelt and the Universal Declaration of Human Rights. Random House, New York 2001. Grabenwarter, Christoph and Katharina Pabel, Europäische Menschenrechtskonvention – Ein Studienbuch, 5th ed. Bech, München/Basel/Wien 2012. Hartung, Fritz, Die Entwicklung der Menschen- und Bürgerrechte von 1776 bis zur Gegenwart, 3rd ed. Musterschmidt , Göttingen/Berlin/Frankfurt 1964. Human Rights Watch, Annual World Report 2012. Downloaded from http://www.hrw. org/world-report-2012 (accessed February 2014).

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Humphrey, John, Human Rights and the United Nations: A Great Adventure. Transnational Publishers, New York 1984. Jacobs, Francis G. and Robin White, The European Convention on Human Rights, 4th ed. Oxford University Press, Oxford 2006. Kant, Immanuel, Grundlegung Zur Metaphysik Der Sitten. J.F. Hartknoch, Riga 1785. Klabbers, Jan, “The General, the Lords, and the Possible End of State Immunity,” ActScandJurisGent, Vol 68, 1999, p. 85-95. Krammer, Robert, Menschenwürde und Art 3 EMRK – Grundrechtsverletzungen in Form von Polizeigewalt und Haft. Jan Sramek Verlag, Salzburg 2012. Kriebaum, Ursula, Folterprävention in Europa: die europäische Konvention zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung oder Bestrafung. Verlag Österreich, Wien 2000. Kälin, Walter and Jörg Künzli, The Law of International Human Rights Protection. Oxford University Press, Oxford 2009. Leadership Conference on Civil Rights Education Fund, the (eds.), Restoring the Conscience of a Nation: A Report on the U.S. Commission on Civil Rights. March 2009. Downloaded from http://www.civilrights.org/publications/reports/commission/ (accessed February 2014). Medina Quiroga, Cecilia, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System. Martinus Nijhoff Publishers, Dordrecht 1988. Nowak, Manfred, Introduction to the International Human Rights Regime. Martinus Nijhoff Publishers, Leiden/Boston 2003. Nowak, Manfred, U.N. Covenant on Civil and Political Rights – CCPR Commentary, 2nd ed., N.P. Engel, Kehl/Strasbourg/Arlington 2005. Nowak, Manfred, “What Practices Constitute Torture? U.S. and UN Standards,” Human Rights Quarterly, Vol. 28, 2006, p. 809-841. Nowak, Manfred and Elizabeth McArthur, The United Nations Convention against Torture – A Commentary. Oxford University Press, Oxford 2008. Nowak, Manfred, “The Crime of Torture,” in M.Odello and G.L. Beruto (eds.), Global Violence: Consequences and Responses, Forty years of excellence in Humanitarian Dialogue: the 40th Anniversary of the International Institute of Humanitarian Law, 33rd Round Table on Current Issues of International Humanitarian Law (Sanremo, 9-11 September 2010). International Institute of Humanitarian Law, Milan 2011, p. 157-163. Nowak, Manfred, Moritz Birk and Tiphanie Crittin, “The Obama Administration and Obligations Under the Convention Against Torture,” Transnational Law & Contemporary Problems, Vol. 20, 2011, p. 34-66. Nowak, Manfred and Ralph Janik, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” in A. Clapham, P. Gaeta and M. Sassoli (eds.), The 1949 Geneva Conventions. A Commentary. Oxford University Press, forthcoming.

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Peters, Edward, Torture. University of Pennsylvania Press, Philadelphia 1996. Phillipe J. Sands, “Turtles and Torturers: The Transformation of International Law,” NYUJ Int’l L & Pol, Vol. 33, 2001, p. 527–59. Rodley, Nigel S., “United Nations actions procedures against ‘disappearances, summary or arbitrary executions, and torture,’” Human Rights Quarterly, Vol. 8(4), 1986, p. 700-730. Samnoy, Ashild, “Origins of the Universal Declaration,” in G. Alfredsson, A. Eide (eds.), The Universal Declaration of Human Rights. The Hague/Boston/London 1999. Savage, Charlie, Takeover; The Return of the Imperial Presidency and the Subversion of American Democracy. Little Brown, New York 2007. Soohoo, Cynthia, Catherine Albisa and Martha F. Davis (eds.), Bringing Human Rights Home – A History of Human Rights in the United States. University of Pennsylvania, Philadelphia 2009. Teifke, Nils, Das Prinzip Menschenwürde: Zur Abwägungsfähigkeit Des Höchstrangigen. Mohr Siebeck, Tübingen 2011. Tretter, Hannes, “Kommentar zu Artikel 3 EMRK,” in K. Korinek and M. Holoubek (eds.), Österreichisches Bundesverfassungsrecht, Teil III Grundrechte, Loseblattsammlung, 10. Lieferung. Springer Verlag 2011. Verdross, A., “Die Würde des Menschen als Grundlage der Menschenrechte”, Grundrechte : Die Rechtsprechung in Europa: Europäische Grundrechte-Zeitschrift, Vol. 4, 1977, p. 207-208. Villiger, Mark Eugen, Handbuch der Europäischen Menschenrechtskonvention (EMRK): unter besonderer Berücksichtigung der schweizerischen Rechtslage. Schulthess, Zürich 1999. Weiner, Allen S., “The Protection of Human Rights in the USA,” Austrian Review of International and European Law, Vol. 16 (forthcoming). Wetz, Franz Josef, Die Würde der Menschen ist antastbar: eine Provokation. KlettCotta, Stuttgart 1998.

chapter 12

The Loaded Gun: The Obama Administration and the Legacy of George W. Bush’s “War on Terror” Niels Bjerre-Poulsen

During the presidential election of 2008, then candidate Barack Obama sharply criticized the Bush administration’s human rights record and its attempt to aggrandize executive power. He described both as violations of American standards and promised that if elected, he would end extraordinary renditions and torture, close Guantanamo, improve the protection of civil liberties, and scale back the claims to executive power that President Bush had made with reference to the ongoing “War on Terror.”1 Having won the election, both President-elect Barack Obama and Vicepresident-elect Joe Biden seemed determined to voluntarily scale down the claims to executive power and rededicate the American government to the advancement of human rights. On the 60th anniversary of the United Nations Declaration of Human Rights, December 10, 2008, the president-elect issued a statement which concluded that: When the United States stands up for human rights, by example at home and by effort abroad, we align ourselves with men and women around the world who struggle for the right to speak their minds, to choose their leaders, and to be treated with dignity and respect. We also strengthen our security and wellbeing, because the abuse of human rights can feed many of the global dangers that we confront – from armed conflict and humanitarian crises, to corruption and the spread of ideologies that promote hatred and violence.2 The departing Vice-president, Dick Cheney, thought otherwise. He had been a driving force behind the aggrandizement and was convinced that Barack Obama and Joe Biden would change their minds when they entered the White 1 2

Charlie Savage, “Barack Obama’s Q & A,” The Boston Globe, December 20, 2007. (http:// www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/). http://change.gov/newsroom/entry/statement_of_president_elect_obama_on_human_rights_day/

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House. He told right-wing radio-host Rush Limbaugh that “once they get here and they’re faced with the same problems we deal with every day, then they will appreciate some of the things we’ve put in place.”3 President Obama’s handling of the Bush administration’s human rights legacy is the subject of this article. A central question is whether the new president actively attempted to dismantle some of the Bush administration’s radical policies to fighting terrorism and return to a previous understanding of the proper balance of power in the American political system, or whether he simply chose to use presidential prerogatives less aggressively than his predecessor. If the latter is the case, then what “loaded guns” did it leave in the White House for future presidents to pick up? In order to answer this question, I will first attempt to briefly describe how the Bush administration’s conception of executive power had shaped its view of human rights and international law in the “war on terror.” In the wake of the attacks on the United States on September 11, 2001, the Bush administration gave new claim to a host of prerogatives and inherent powers. The justification was the ability to protect the national security in an allegedly brand new international environment, but the claims went well beyond emergency powers.4 The Bush administration claimed the right to deny the writ of habeas corpus to “enemy combatants” – citizens and noncitizens – as well as the right to interrogation methods that most people consider to be torture.5 These and other changes were all based on a radical new version of the hitherto little known theory of “the unitary executive.” Adherents to this theory constituted a small minority within the legal community, but within the Bush administration, they became a dominant voice. Both in the Department of Justice and in the Vice-president’s office, they provided legal opinions intended to minimize constitutional checks on the president’s power and remove restrictions imposed by what Secretary of Defense Donald Rumsfeld

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Quoted from Andy Barr, “Cheney: Obama ‘not likely to cede authority’” Politico, December 15, 2008. (http://www.politico.com/news/stories/1208/16594.html). For an excellent analysis of the Bush administration’s extraordinary claims to power, see James P. Pfiffner, Power Play; The Bush Presidency and the Constitution. Brookings Institution Press, Washington, D.C. 2008. See Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. Palgrave McMillan, New York 2008, Mark Danner, “The Logic of Torture,” The New York Review of Books, Vol. 51, No. 11, June 23, 2004 (http://www.nybooks.com/articles/17190), and Jane Mayer, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals. Doubleday, New York 2008.

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called “lawfare.”6 What Rumsfeld had in mind was first of all the attempt by weaker nations to curb American power by the use of international law and judicial institutions.7 Others in the administration – first of all Vice-president Cheney – were more concerned with changing the balance between the president and Congress. The Bush administration successfully argued that the “war on terror” was a conflict like no other in the nation’s history – a conflict that required expanded executive powers in order for the United States to succeed. The legal strategy adopted to achieve this goal was informally known in the White House as “reverse lawfare.” The point of departure for the “reverse lawfare”-strategy was “unitary executive theory.” The Bush administration referred to it while arguing that the president in his capacity as Commander-in-Chief had the right to place prisoners in indefinite detention and ignore both international treaties and legislation enacted by Congress. This radical claim to prerogatives was, in the words of Professor Harold H. Bruff, “fundamentally inconsistent with the rule of law, and much harm would flow from it.”8 Nevertheless, it would take several years and a series of major cases before the Supreme Court of the United States had removed the legal underpinnings of what the Bush administration attempted to do. Traditionally, conservatives have tended to be formalists, skeptical of progressive attempts to aggrandize presidential power along with the power of the federal government, but in the 1980s, a new generation of legal scholars, which included Samuel Alito, Bruce Fein and Stephen Calabresi, went to work in the Reagan administration’s Department of Justice. They were clearly less fearful of centralized power and realized that presidential power could be used for their ends just as well as it had previously been used successfully for liberal ends. A strong president could be a force against liberal courts and against entrenched liberalism within the regulatory state. It was in this spirit

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Harold H. Bruff, Bad Advice; Bush’s Lawyers in the War on Terror. University Press of Kansas, Lawrence 2009, p. 133. Bruff, 2009, p. 132 ff. Bruff, 2009, p. 134.

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that the theory of the “unitary executive” had first been introduced in the Reagan administration’s Department of Justice.9 However, the version of the theory used in the Reagan administration’s Department of Justice was quite modest compared to the version presented by the Bush administration two decades later. Even conservative scholars such as Bruce Fein and Steven G. Calabresi – both veterans of the Reagan Justice Department – were surprised by the extremes to which the people around Bush now took the notion of the unitary executive.10 New assertions of implied and inherent presidential powers in both domestic and foreign affairs had “absolutely nothing to do” with their understanding of it, Calabresi would argue.11 The raison d’etre for the Bush administration’s renewed claim to inherent powers was the notion that the country was engaged in a “war on terror” – not metaphorically, but as an actual war that enabled the president to act as Commander-in-Chief, not just in one particular country or theatre of war, but also at home or wherever he considered it necessary. While the Founding Fathers might have imagined that a president could exercise “supraconstitutional powers” in the case of a national emergency, it is not likely that they had an indefinite span of time, like the “war on terror,” in mind.12 Furthermore, the Supreme Court had clearly rejected such a claim to emergency presidential powers in its landmark decision in Youngstown Sheet & Tube Co. v. Sawyer (1952) – the Steel Seizure case.13 Nevertheless, the Bush administration proceeded to treat emergency measures as permanent features of executive power. It also claimed the right to move between different legal spheres – between domestic and military law – or for that matter the right to stay in between legal spheres, as with its military commissions. As9

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Beginning in the mid-1970s, a number of conservative publications expressed the idea that Congress, not the Presidency posed a threat to the separation of powers. Among them were Gordon S. Jones and John A. Marini, The Imperial Congress: Crisis in the Separation of Powers. Pharos Books, New York 1988, and L. Gordon Crovitz and Jeremy Rabkin, The Fettered Presidency: Legal Constraints on the Executive Branch. American Enterprise Institute for Public Policy, Washington, D.C. 1989. Charlie Savage, “Reaganites Reconsider,” The Nation, September 6, 2007. (http://www. thenation.com/doc/20070924/savage). Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive. Yale University Press, New Haven and London 2008, p. 21. On the notion of “supraconstitutional” powers, see Michael A. Genovese, Memo to a New President; The Art and Science of Presidential Leadership. Oxford University Press, New York 2008, p. 209-213. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZC2.html

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sistant Attorney General Viet D. Dinh spelled out the Bush administration’s position in 2003: This so-called war operates not on the usual battlefield, geographically located. Here the war knows no bounds … An enemy activity may be both a violation of the laws of war and of domestic law. The president may choose to deal with it as law enforcement officer or as commander in chief.14 Three days after 9/11, Congress authorized the president to use military force against “nations, organizations, or persons” directly linked to these terror attacks.15 On September 25, however, the Office of Legal Counsel issued a memo which not only substantially broadened the scope of the authority that the president had been granted by Congress, but also questioned whether he needed any such authorization in the first place, since the Founders had vested “all federal executive power in the President.” 16 In his view, Congress could not “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.” 17 Several of the controversial memos issued by the Office of Legal Counsel in the wake of 9/11 were co-authored by the conservative legal scholar John Yoo. In his opinion, the power of Congress to cut off funding for the military meant that the president did not have to seek its approval before he began hostilities. It was simply such an effective check that prior consultation was not required. In an advisory opinion dated October 17, 2001, Yoo further pursued the logic of his radical version of the unitary executive theory by arguing that Congress could not restrict the president’s power to use military force on American

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Quoted from Gene Healy, The Cult of the Presidency; America’s Dangerous Devotion to Executive Power. Cato Institute, Washington, D.C. 2008, p. 165. House Joint Resolution, “Authorizing Use Of United States Armed Forces Against Those Responsible For Recent Attacks Against The United States,” Congressional Record, September 14, 2001, Page H5638 (http://www.fas.org/irp/threat/useofforce.htm). Memorandum Opinion: “The President’s Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them,” Memorandum Opinion For The Deputy Counsel To The President, September 25, 2001 (http://www.Usdoj.Gov/ Olc/Warpowers925.Htm). Memorandum Opinion, 2011.

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soil, since 9/11 had made it a potential battlefield.18 Implicitly, this also justified domestic use of military intelligence agencies, including the NSA, to eavesdrop on American citizens. On November 13, Yoo co-authored an executive order setting up military tribunals. The major advantage from this unusual construction was that since the origins of statements could be classified, it was possible to use evidence before the tribunals that had been obtained through the use of torture. In setting up the tribunals, the Bush administration relied on the so-called state secrets privilege. Since a good deal of the evidence to be presented would likely be classified, the entire process could be closed to outside observers, and the issues of fact and law could be determined by the tribunal rather than by the jury.19 As Robert M. Pallitto and William G. Weaver have noted, the state secrets privilege is a very tempting tool to use and abuse by a president, since its current structure “virtually guarantees that its assertion in any particular case will be successful and that the costs for abuse of the privilege will be minimal or nonexistent.”20 In January 2002, John Yoo went on to argue that the president could suspend any treaty which had been ratified by the Senate, including the Geneva conventions. Accordingly, there was no need for the individual screenings (“Article 5 hearings”) of prisoners taken in Afghanistan that the Geneva Conventions otherwise required. The point was not that such hearings would have been a major obstacle. The point was to demonstrate that the president did not have to conduct them. Yoo admitted that such a decision would be unprecedented and extremely controversial, but that the president could nevertheless stick to his prerogatives as Commander in Chief and ignore the criticism. Despite strong objections from the State Department, President Bush followed Yoo’s advice on February 7, 2002. Two months later, a secret memo written by John Yoo and and his superior, Jay Bybee, went even further by claiming that the president could transfer suspected terrorists to countries where they were likely to be tortured (the

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“Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” October 17, 2001. The memo is secret, but parts have been quoted in other published memos. Quoted from Charlie Savage, Takeover. The Return of the Imperial presidency and the Subversion of American Democracy. Little, Brown and Company, New York 2007, p. 130-131. Robert M. Pallitto and William G. Weaver, Presidential Secrecy and the Law. John Hopkins University Press, Baltimore, Maryland 2007, p. 119. Pallitto and Weaver, 2007, p. 119.

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fact that they would most likely to be tortured was actually the only rational reason for handing them over).21 Finally, on August 1, Jay Bybee and John Yoo went on to redefine torture as pain “associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significantly bodily function will likely result.”22 According to what soon became known as “the torture memo,” anything below that threshold was not torture. As a further safeguard, Yoo asserted that as long as the infliction of pain merely served the purpose of obtaining information and not the sadistic pleasures of the torturers, charges could easily be dismissed. The courts responded ambiguously to the Bush administration’s attempt to aggrandize presidential power. On June 28, 2004, the Supreme Court ruled in Rasul v. Bush that the Guantánamo prisoners were not beyond the reach of the US court system, as contended by the Bush administration. On the same day, the court ruled in Hamdi v. Rumsfeld that government did have the power to detain “unlawful combatants,” but that US citizens had a legal right to challenge their detention. The court also made it clear that the president would have to comply with a valid federal statute. In her majority opinion, Justice Sandra Day O’Connor noted: We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens… . Whatever power the United States Constitution envisions for the Executive in its exchanges with … enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.23 In 2006, the Supreme Court delivered its third rebuke to the president’s claims to unilateral authority, when it reaffirmed that Common Article 3, concerning the humane treatment of prisoners of war did indeed apply to those held at Guantanamo and elsewhere, regardless of how they were designated by the 21

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Secret memo, “The President’s Power as Commander-in-Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nation.” Office of Legal Counsel, March 12, 2002. The memo itself is still secret, but quotes from it can be found in other memos. Quoted here from Charlie Savage, 2007, p. 148-49. U.S. Dept. of Justice Memo from Deputy Assistant Attorney General John Yoo To Alberto R. Gonzales, White House Counsel, August 1, 2002 (http://news.findlaw.com/hdocs/ docs/doj/bybee80102ltr.html). Hamdi v. Rumsfeld (03-6696) 542 U.S. 507 (June 28, 2004) (http://www.law.cornell.edu/ supct/html/03-6696.ZS.html).

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Bush administration. Taken together, the three Supreme Court cases mentioned here could fairly be interpreted as a rejection of the unitary executive theory, although the Court once again did not address the theory directly. Other courts have since addressed the issue – most notably the US Court of Appeals for the 4th Circuit, which in June 2007 rebuked some of the president’s claims to executive power in al-Marri v. Wright. The court found the president’s claims “breathtaking” and far beyond the scope of power granted by the Constitution.24 It noted that “absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the U.S.”25 The court, however, did not reject the concept of “enemy combatants,” and the suspect in the case, Ali Saleh Kahlah al-Marri, remained in military confinement. In June 2008, the Supreme Court rebuked the Bush administration’s handling of prisoners at Guantanamo for a fourth time in Boumediene v. Bush. In a 5-4 decision, the court ruled against the Military Commissions Act and affirmed their right to challenge their detentions in a federal court, regardless of the fact that they were not American citizens.26 With its fourth rebuke, the Supreme Court sent a clear signal that the president had overstepped his constitutional authority. Though the court had yet to define the limits of presidential power in the “war on terror,” the notion of the unitary executive had been dealt a major blow. Furthermore, the overreach of the Bush administration had not only created suspicion and mistrust in the other branches, in the American public, and amongst allies, but also fostered resentment and resistance from within the federal bureaucracy. By 2008, the “torture memo” and other documents authorizing the use of “waterboarding” had become the objects of an internal ethics investigation within the Justice Department.27 According to Professor Harold H. Bruff, legal counterforces set in against the Bush administration, because its leading voices overreached in their determination to avoid “lawfare” by picking young ideologues who would give them the legal advice they wanted, rather than the legal advice they needed. His conclusion is that the administration could have achieved much more of 24 25 26 27

The entire opinion of the court can be found at: http://www.scribd.com/doc/100529/ALMARRI-v-WRIGHTSee note 24. Boumediene v. Bush ( http://www.law.cornell.edu/supct/html/06-1195.ZS.html). Scott Shane, “Waterboarding Focus of Inquiry by Justice Department”, The New York Times, February 23, 2008.

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what it wanted by working with Congress instead of engaging in what he calls “lawyerly brinksmanship.”28 However, if one turns the attention to President Bush’s defense of political prerogatives, he looks more successful, and his administration has seemingly been able to leave several loaded guns around for President Obama or a future president to pick up. Among them are the inventive use of signing statements and executive orders to secure and expand presidential prerogatives, as well as the president’s claimed right to act as lawmaker in establishing the rules for military tribunals, and judge in imposing the final sentences. Once in office, President Obama called for restraint and supervision by the Attorney General in the use of signing statements, but he did not entirely dismiss the use of them and actually issued two just a couple of weeks after his call for restraint.29 This was nevertheless consistent with the view he presented during the presidential election campaign of 2008. While his Republican opponent John McCain pledged never to use such signing statements if he became president, Barack Obama only denounced what he saw as President Bush’s abuse of the prerogative, and promised to use it in a restrained manner. Unlike the American Bar Association, he didn’t find such statements to be “contrary to the rule of law.”30 Another loaded gun left by the Bush administration was the notion that the president is not bound by international treaties and can suspend the rule of law for detainees suspected of terrorism. The claim was rejected by the Supreme Court in the Hamdan v. Rumsfeld (2006). The ruling made it clear that the president does not have inherent power, but needs a statute and has to follow the regulations for court martial, when he sets up military commissions. However, President Bush’s response was to go to Capitol Hill and plead with the Republican majority. The result was the Military Commissions Act. Thus, Congress became complicit in passing legislation which gave the president the possibility of abrogating the Geneva conventions. The task of defining what is cruel and inhumane treatment was now largely granted to the president, and the definition of an “unlawful enemy combatant” had been substantially broadened. In other words, on this important subject, the president had been delegated the power to define what the criminal law is.

28 29

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Bruff, 2009, p. 292. The White House, “Memorandum for the Heads of Executive Departments and Agencies. Subject: Presidential Signing Statements,” March 9, 2009 (http://www.whitehouse. gov/the_press_office/Memorandum-on-Presidential-Signing-Statements/). The White House, 2009 (see note 29).

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Congress passed the act in spite of profound opposition from within the military establishment which had no interest in weakening the Geneva Conventions. Not only did the law undo the restrictions imposed by the Hamdan case; according to many observers, it also weakened the Supreme Court’s ability to halt the projection of presidential power in the future.31 President Obama came into office with a clear determination to mark a decisive break from his predecessor. Within his first two days in office, he ordered the closing of secret prisons used by the CIA and the prison at Guantanamo Bay, which had become an international symbol of the Bush administration’s draconian measures. Likewise, his administration ordered a temporary suspension of all active military commission processes and set up a task force to examine other options for the prisoners in question. The new president also announced that the United States would end its boycott of the UN’s Council for Human Rights in Geneva and ordered an end to the Bush administration’s programs of extraordinary rendition and harsh interrogation. The so-called “torture memo” from the Bush administration’s Office of Legal Counsel was released to the public, and the Obama administration made it clear that it would no longer be a matter for the military and executive authorities to decide what constituted torture.32 President Obama’s new director of the CIA, Leon Panetta specified that he considered “waterboarding” to be torture and thus illegal. There was more: The International Committee of the Red Cross would once again have access to prisoners, and these would once again be protected by the Geneva Conventions. Likewise, the new administration stressed that Common Article 3 of the Geneva Conventions would once again serve as a “minimum baseline” for the treatment of the prisoners, and that CIA interrogations would once again comply with the standards established by the Army Field Manual.33 The immediate practical implications of these changes were perhaps small, but as symbolic gestures, they sent a clear signal about a different view of international law and human rights. President Obama was also eager to demonstrate a different conception of executive authority. He stressed that the detention of prisoners seized in the “war on terror” would not be based on any power vested in the president as 31 32 33

Scott Shane and Adam Liptak, “Shifting Power to the President,” The New York Times, Sept. 30, 2006. (http://www.nytimes.com/2006/09/30/us/30detain.html?_r=1&oref=slogin). http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations Barack Obama, The White House, “Executive Order – Ensuring Lawful Interrogations,” January 22, 2009. (http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/).

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commander-in-chief, but solely on international law and specific legislation passed by Congress – the “Authorization for Use of Military Force.”34 In the same vein, he stressed that the decision on whether to prosecute officials from the Bush administration was a matter for the Attorney General, not the president, to decide. Most civil libertarians were initially pleased by all these announcements and moves by the incoming administration, but many got their first major disappointment when President Obama announced that he did not intend to close detention centers at Bagram Air Force Base and elsewhere in Afghanistan and Iraq. Soon it also became clear that his administration did not intend to rule out the use of prolonged or indefinite detentions. Like the Bush administration, the Obama administration argued that such a policy had implicitly been authorized in the Authorization for the Use of Military Force (AUMF). In other words, it wanted to close down the actual physical location at Guantanamo because it had come to be widely regarded as a legal black hole, but the administration shared its predecessor’s belief in military detention for terror suspects who allegedly could neither be released nor put on trial. The plan was to grant these prisoners new procedural safeguards and then move them to a new facility – the Thomson Correctional Center, an empty maximum-security prison in Illinois. The improvements were real and considerable: the prisoners would be granted habeas corpus, they would have access to lawyers, and there would be an ongoing review process. Their legal status, however, would not change. The plans for both the transfer of prisoners to the United States and trials in the US federal courts were ultimately abandoned by the Obama administration. There were two closely related reasons for this. One was the political fallout from the attempt to prosecute Khalid Sheik Mohammed and his co-defendants in a federal court in New York City. The other was a major change in public opinion, even among Democrats, and the reaction of Congress to this change.35 It inserted itself in the process of barring the transfer of prisoners by denying the necessary funding. As early as May 20, 2009, the Senate voted 90 to 6 against an appropriation of $80 million to the closing of

34 35

“Authorization for Use of Military Force,” September 18, 2001, Public Law 107-40 [S. J. RES. 23] (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html). Jack Goldsmith, “What changed U.S. attitudes about counterterrorism policies,” The Washington Post, February 16, 2012 (http://www.washingtonpost.com/opinions/counterterrorism-policies-have-been-legitimized-by-courts-and-consensus/2012/02/13/ gIQA5btbGR_story.html?wpisrc=nl_opinions).

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Guantanamo.36 Determined to cut his losses, Obama now came to see a reformed military commissions system as his least bad option.37 This decision was harshly criticized by many civil libertarians, but President Obama argued that by improving the safeguards for defendants, he had at least closed a legal black hole.38 The Obama administration also disappointed many civil libertarians with its decision against “relitigating the past,” and its use of the state secrets privilege to prevent former detainees from filing lawsuits against the American government.39 A number of prominent Democrats, including Joe Biden and Hillary Clinton, had previously supported the passage of a State Secrets Protection Act of 2008, which would have prohibited such a use of the state secrets privilege for this purpose. However, when the bill was reintroduced in February of 2009, with support from many leading Democrats, the Obama administration decided to neither support nor oppose the bill. While some argued that the nation had to confront and discuss any unlawful actions taken during the Bush administration in order to prevent them from happening again, the President and his advisors had come to the conclusion that any such move would be counterproductive. Not only would it be politically toxic to do it for a president who had promised the voters an end to partisan polarization in Washington, but it was also doubtful whether any interrogator could be convicted, considering that the memos from the Office of Legal Counsel of the Justice Department had provided them with legal cover. A failure to convict anyone accused of using torture, might even be seen by many unfamiliar with the legal complications as a vindication of the Bush administration’s interrogation policies.40 Thus, the decision to invoke the state secrets privilege was based on a pragmatic assessment of the political costs. 36

37 38

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Peter Finn and Anne E. Kornblut, “Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility,” The Washington Post, April 24, 2011 (http://www.washingtonpost.com/world/guantanamo-bay-how-the-white-house-lost-the-fight-to-closeit/2011/04/14/AFtxR5XE_print.html). Leonard Cutler, “Bush vs. Obama Detainee Policy Post–9/11; An Assessment,” Strategic Studies Quarterly (Summer 2010), p. 74 ff. Richard A. Serrano, “Obama to Resume Military Trials for Guantanamo Detainees,” Los Angeles Times, March 08, 2011 (http://articles.latimes.com/2011/mar/08/nation/lana-obama-guantanamo-20110308). President Barack Obama, “State of the Union Speech”, January 27, 2010. (http://abcnews.go.com/Politics/State_of_the_Union/state-of-the-union-2010-president-obamaspeech-transcript/story?id=9678572). Se James P. Pfiffner, Torture as Public Policy; Restoring U.S. Credibility on the World Stage. Paradigm Publishers, Boulder 2010, p. 164 ff.

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Probably on the same grounds, Senior Attorney David Margolis from the Obama administration’s Office of Professional Responsibility in the Department of Justice decided to downgrade the conclusion to an ethics investigation of the conduct of Jay Bybee and John Yoo. “Professional misconduct” was replaced by “poor judgment.”41 Bybee’s role in writing the torture memos was reduced to “supervisory,” and Yoo was excused by a combination of post-9/11 panic and the fact that he already held extreme views on executive power before he got the job at the OLC, and thus merely had followed his convictions when he wrote the memos. Downgrading the responsibility of Bybee and Yoo meant that they would not be prosecuted.42 If President Obama did not attempt to expand executive power in his first two years in office, he did not do much to transfer institutional authority back to Congress either. He remained secretive about the drone strikes in Pakistan, and he initiated military actions in Libya on March 19, 2011, without any formal approval from Congress.43 Many who monitored how President Obama made use of his executive power, recalled how candidate Obama during the election campaign in 2007 had responded to a question about the president’s right to use military force without congressional approval: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”44 Regardless of the fact that all administrations since 1973 have disputed the constitutionality of the War Powers Act, President Obama did halfway comply with it by sending a notification to Congress within 48 hours of initiating

41

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Department of Justice, Office of Professional Responsibility, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” July 26, 2009. http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf David Luban, “David Margolis is Wrong,” Slate Magazine, February 22, 2010 (http:// www.slate.com/id/2245531/). Tara McKelvey, “Covering Obama’s Secret War,” Columbia Journalism Review, May/June 2011 (http://www.cjr.org/feature/covering_obamas_secret_war.php). Savage, “Barack Obama’s ...”, 2007.

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hostilities in Libya.45 However, some critics argued that the War Powers Act did not at all apply to the situation there, since no one suggested that the crisis in Libya constituted any threat to the national security of the United States.46 By claiming to abide by the act, the Obama administration had simply granted itself 60 days to act without having to defer to Congress, and when the 60 days had passed without a congressional resolution, the administration argued that the American military participation in Libya was no longer on a level that would require congressional authorization under the War Powers Act. However, President Obama maintained that in his view it was “better to take military action, even in limited actions such as this, with congressional engagement, consultation and support. Congressional action in support of the mission would underline the US commitment to this remarkable international effort.”47 Here, as in other disputes with Congress over executive power, the Obama administration took what can best be described as a middle position. It sought congressional approval, because it “better” underlined US commitment, but implicitly also claimed a right to take action without it. In March 2009, the Obama administration dropped the controversial concept of “enemy combatants.” Although some critics complained that it was merely the label that was rejected, while the indefinite detention policies continued, the decision and the reasoning behind it nevertheless illuminated a conception of presidential power that was different from that of George W. Bush. The press release from the Department of Justice explicitly made it clear that the president did not give claim to any special prerogatives as Commander-in-Chief “independent of Congress’s specific Authorization,” and that future detentions, which would only involve individuals who had given sub-

45

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President Barack Obama, The White House, “Letter from the President Regarding the Commencement of Operations in Libya,” March 21, 2011 (http://www.whitehouse.gov/ the-press-office/2011/03/21/letter-president-regarding-commencement-operationslibya). A major objection to the War Powers Act was originally formulated by President Richard M. Nixon, who found it wrong that Congress could increase its role in foreign policy decisions without any positive action, not even a yes or no vote. “Nixon War Powers Resolution Veto Message,” October 24, 1973 (http://www.articleii.org/files/ Nixon_War_Powers_Resolution_Veto.pdf). Brian Montopoli, “Is Obama’s Libya Offensive Constitutional?“, CBS News, March 22, 2011 (http://www.cbsnews.com/8301-503544_162-20045927-503544.html). Dana Bash, “Obama seeks congressional support for Libya mission.” CNN, May 20, 2011 (http://articles.cnn.com/2011-05-20/politics/war.powers_1_libya-resolution-presidentbarack-obama?_s=PM:POLITICS).

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stantial support to al Qaeda or the Taliban, would draw “on the international laws of war to inform statutory authority conferred by Congress.”48 Questions remained, though, about future use of the concept of “enemy combatants.” At the center of this debate was the case against Ali Saleh Kahlah al-Marri, a citizen of Quatar. He was arrested in 2002 on American soil and accused of being a sleeper-agent for al-Qaeda. The following year, he was reclassified as an “unlawful combatant” and placed at Navy Consolidated Brig in Charleston, South Carolina. Here, he spent the next six years. One of the executive orders that Barack Obama issued after becoming president instructed the Department of Justice to review al-Marri’s case.49 The principal issue was whether terrorism cases should once again be prosecuted as criminal offenses under the federal criminal code, rather than as acts of war.50 In December 2008, the US Supreme Court had agreed to hear al-Marri’s case. This could provide the court with the opportunity to rule on the constitutionality of the very concept of a “war on terror” – on whether the president could apply his powers as Commander-in-Chief on a global battlefield, including American soil. These powers included the right to designate suspected terrorists as enemy combatants, as the Bush administration had done in the cases against Jose Padilla – an American citizen – and Ali Saleh al-Marri, who was a legal resident in the United States.51 The Padilla case could have settled the issue, but the Bush administration had abandoned the idea of trying him as an enemy combatant when he appealed his case to the US Supreme Court. Instead Padilla had been tried as a criminal defendant and his appellate court case was dismissed on the grounds that it was now moot. The al-Marri case provided a second chance to let the Supreme Court rule on the concept of “enemy combatants,” but after the Obama administration’s review of his status in late January 2009, he was indicted on two charges of providing material support to al-Qaeda in the United States. Al-Marri’s sentencing to eight years in prison in October 2009 demonstrated that the criminal court system could indeed handle cases against accused terrorists, but 48

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The United States Department of Justice, “Department of Justice Withdraws “Enemy Combatant” Definition for Guantanamo Detainees” (http://www.justice.gov/opa/ pr/2009/March/09-ag-232.html). “Review of the Detention of Ali Saleh Kahlah,” The White House, January 22, 2009 (http://www.whitehouse.gov/the-press-office/ReviewoftheDetentionofAliSalehKahlah/. Actually, the Bush administration claimed the right to choose between the two options. On the Padilla case, see “Jose Padilla Sentenced on Terrorism Charges,” MSNBC, January 22, 2008 (http://www.msnbc.msn.com/id/22784470/).

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the court had still not been given the opportunity to explicitly address the very idea that a president, under certain circumstances, can designate foreigners and Americans alike as enemy combatants. Thus, the claim that had previously been upheld by the Fourth Circuit, remained unchallenged. President Obama had no intention of using the concept of “enemy combatant,” but the gun was nevertheless still loaded. As for the closing of Guantanamo and ending the use of military tribunals, as described above, one might argue that President Obama tried, but not that hard. The political cost seemed too big and his political priorities changed under the impression of declining public support.52 His decision concerning tribunals was made despite the fact that they had not exactly been efficient. From the opening of the camp in Guantanamo on January 11, 2002 through 2009, fewer than thirty detainees had been charged and only two of them had been convicted. More than five hundred prisoners had, after years in the camp, been released without any charges.53 If President Obama was criticized by civil libertarians for his decision to keep military tribunals, he was strongly condemned at the end of the year for breaking a promise to veto the 2012 National Defense Authorization Act (NDAA) – the annual spending bill that finances the military’s operations – if it included provisions for indefinite detention. A subsection that did just that had been attached to the bill in the House and Senate. It included proposals which had previously been known as the Detainee Security Act in the House, and as the Military Detainee Procedures Improvement Act in the Senate. The primary goals in both proposals were to hand over counterterrorism responsibilities from law enforcement to the military, to make the transfer of prisoners from Guantanamo very difficult, and to make it virtually impossible to shut down the facility. The new provisions required that suspected terrorists, or people suspected of substantially aiding terrorists, be either tried before military commissions or held in indefinite detention. Many American critics were particularly outraged by the possibility that the NDAA could grant presidents the authority to imprison American citizens as well as noncitizens indefinitely without charges or a trial.54

52 53 54

Charlie Savage, “Closing Guantánamo Fades as a Priority,” The New York Times, June 25,2010 (http://www.nytimes.com/2010/06/26/us/politics/26gitmo.html). Pfiffner, 2010, p. 162. Joanne Mariner, “The Indefinite Detention of Citizens and Non-Citizens Under the NDAA,” Verdict, January 18, 2012 (http://verdict.justia.com/2012/01/18/the-indefinitedetention-of-citizens-and-non-citizens-under-the-ndaa).

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Since the spring of 2011, leading officials from the Obama administration had publicly expressed their opposition to the controversial provisions in the NDAA, and the president himself had vowed to veto the military budget if they were left in. In the end, however, the Obama administration settled for a number of revisions and signed it anyway. The president himself clearly deserved part of the blame for the state of affairs, since he had implicitly accepted and justified the principle of indefinite detention several times in the previous years.55 Yet, there was a certain irony in the fact that when Congress, with a new Republican majority in the House, finally inserted itself in the “war on terror,” it was mostly to make the executive overreach by the Bush administration difficult to undo. Unlike the Bush administration’s widespread use of signing statements to aggrandize presidential power, president Obama attached a signing statement to the NDAA, which, among other things, explained that the “fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”56 The president went on to declare that: my Administration will not authorize the indefinite military detention without trial of American citizens. [...] My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law. [...] As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Admin55

56

One occasion was a filing to a federal court on March 13, 2009, another was an executive order two years later: “RESPONDENTS’ MEMORANDUM REGARDING THE GOVERNMENT’S DETENTION AUTHORITY RELATIVE TO DETAINEES HELD AT GUANTANAMO BAY,” March 13, 2009 (http://biotech.law.lsu.edu/cases/nat-sec/Guantanamo/BatesRevisedDetAuthFINAL.pdf); Executive order “PERIODIC REVIEW OF INDIVIDUALS DETAINED AT GUANTÁNAMO BAY NAVAL STATION PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE”, March 7, 2011 (http://www. whitehouse.gov/sites/default/files/Executive_Order_on_Periodic_Review.pdf). Barack Obama, “Statement by the President on H.R. 1540,” December 31, 2011 (http:// www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540).

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istration accept or adhere to a rigid across-the-board requirement for military detention.57 In other words, there was perhaps a new loaded gun lying around in the White House, but as long as Barack Obama was president, it would not be used, and the criminal justice process would not be further militarized. Before the Obama administration had agreed to a compromise version of the bill, the original House version had explicitly banned the prosecution of al Qaeda suspects in civilian courts. Nevertheless, the broken promise to veto the act, made the Executive Director of ACLU, Anthony D. Romero, predict that President Obama would now “forever be known as the president who signed indefinite detention without charge or trial into law.” Romero also concluded that “any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.”58 Others who had hitherto supported the president were just as critical of him now. Columnist Andrew Sullivan called the president’s signing of NDAA “another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie,” and an editorial in the New York Times called the president’s signing “a complete political cave-in.”59 The Obama administration pushed back by arguing that many liberal critics had misunderstood the provisions of the final bill. As for the president’s right to indefinitely detain US citizens captured on American soil, nothing was changed. The questions raised by the Bush administration’s claim that the AUMF authorized the military detention of American citizen Jose Padilla were still matters for the courts to resolve. The NDAA codified such claimed rights – by no means an unimportant change – but it did not expand them, the Obama administration argued. Furthermore, President Obama did not attempt to base a right to make indefinite detentions on any inherent power of the President as Commander-in-Chief, and as long as President Obama was

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Obama, 2011 (see note 56). Press release, “President Obama Signs Indefinite Detention Bill Into Law”, December 31, 2011. (http://www.aclu.org/national-security/president-obama-signs-indefinite-detention-bill-law). Andrew Sullivan, “Obama Caves Again On Civil Liberties”, December 15m 2011 (http:// andrewsullivan.thedailybeast.com/2011/12/obama-caves-again-on-civil-liberties. html); “Politics Over Principle”, The New York Times, December 15, 2011 (http://www. nytimes.com/2011/12/16/opinion/politics-over-principle.html?).

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in office, suspected terrorists arrested inside the United States would be processed through the federal court system.60 The modifications of the NDAA were perhaps not as substantial as the Obama administration claimed, but on the other hand, there were political realities that the president’s liberal critics ignored. First of all, there were enough votes in Congress to overrule a presidential veto. Not signing the NDAA might have been a moral victory, but it would have been a humiliating political defeat. Some critics were mollified on February 28, 2012, when the Obama administration issued a Presidential Policy Directive (PPD-14), which made it explicit how President Obama intended to use the controversial Section 1022 of the NDAA.61 Among other things, the directive made it clear that the President intended to exempt American citizens. He also claimed to be specifically authorized to waive the requirement in Section 1022 of military custody, if he considered it to be in the interest of US national security. Some critics argued that this was yet another effort to strengthen executive power, but others saw it as a clever use of a national security rationale to chip away at the ominous provisions of the NDAA.62 The alternative, they argued, was to accept that Congress had granted the military the right to take people into custody on American soil. Obviously, the Policy Directive could be rescinded by a future president, so the next logical step, if the goal was indeed to chip away at the allegedly harmful provisions of the NDAA, would be an attempt to repeal or amend them. One such effort was the introduction of a bill by Senator Mark Udall (D-Colorado) and Representative Adam Smith (D-Washington) to repeal Sections 1021 (concerning indefinite detention) and Section 1022 of the NDAA.63 On balance, what is the overall assessment of Barack Obama’s efforts in his first term as president to break with the Bush administration’s human rights policies and views of executive power? Evidently, there were parts of the Bush administration’s approach to fighting terrorism that the Obama administra60

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Ryan J. Reilly, “Obama Administration Pushes Back On Liberal Criticism Over NDAA’s ‘Indefinite Detention’” January 6, 2012 (http://tpmmuckraker.talkingpointsmemo. com/2012/01/obama_administration_pushes_back_on_liberal_criticism_over_ndaas_ indefinite_detention.php). http://www.justice.gov/opa/documents/ppd-14.pdf. Joanne Mariner, “Chipping Away at the NDAA,” Verdict, February 29, 2012. (http://verdict.justia.com/2012/02/29/chipping-away-at-the-ndaa). Michael McAuliff, “Indefinite Detention Targeted in Democratic Bill On Handling Terrorist Suspects”, The Huffington Post, March 8, 2012 (http://www.huffingtonpost. com/2012/03/08/indefinite-detention-terrorism-bill-_n_1332256.html).

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tion kept in place, while others were indeed abandoned. There was concern or outrage over President Obama’s expanded use of unmanned drones for targeted assaults in Pakistan, over his automatic extension of the PATRIOT Act on May 26, 2011, and over his lack of consultation with Congress prior to military operations in Libya in March 2011. Mostly, however, it seems unfair to describe the human rights policies of the Bush administration and the Obama administration as largely similar.64 The Obama administration was first of all dealing with legacy-problems. Such dismantling of policies already in place is a very different task than enacting them in the first place. It was evident that Obama bought into the basic premises of “the war on terror,” but he did not argue that the rule of law and congressional oversight were hamstringing the executive branch and thus weakening its effort to strengthen national security. Nor did he claim that presidential actions were by default legal or that executive decisions were unreviewable by the other branches.65 As described above, there were real and important departures from George W. Bush’s human right record, but mostly, Obama’s break with his predecessor’s policies came in the form of personal assurances that he would not abuse prerogatives. For most civil libertarians that was a big step forward, but they rightly continued to worry about the loaded guns in the White House.

Literature and References Abrams, Jim, “Patriot Act Extension Signed by Obama,” May 27, 2011, The Huffington Post (http://www.huffingtonpost.com/2011/05/27/patriot-act-extension-signedobama-autopen_n_867851.html). Barr, Andy, “Cheney: Obama ‘not likely to cede authority’”. Politico, December 15, 2008. (http://www.politico.com/news/stories/1208/16594.html). Bash, Dana, “Obama seeks congressional support for Libya mission.” CNN, May 20, 2011 (http://articles.cnn.com/2011-05-20/politics/war.powers_1_libya-resolutionpresident-barack-obama?_s=PM:POLITICS).

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For one example of such a view, see Curtis A. Bradley & Eric A. Posner, “Symbols and Substance in the New Administration.” Executive Watch, 22. March 2009 (http://executivewatch.net/2009/03/23/symbols-and-substance-in-the-new-administration/). For one example, see Jim Abrams, “Patriot Act Extension Signed by Obama,” May 27, 2011, The Huffington Post (http://www.huffingtonpost.com/2011/05/27/patriot-act-extension-signed-obama-autopen_n_867851.html).

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Bradley, Curtis A. and Eric A. Posner, “Symbols and Substance in the New Administration.” Executive Watch, March 22, 2009. (http://executivewatch.net/2009/03/23/ symbols-and-substance-in-the-new-administration/). Bruff, Harold H., Bad Advice; Bush’s Lawyers in the War on Terror. University Press of Kansas, Lawrence 2009. Calabresi, Steven G. and Christopher S. Yoo, The Unitary Executive. Yale University Press, New Haven and London 2008. Crovitz, L. Gordon and Jeremy Rabkin, The Fettered Presidency: Legal Constraints on the Executive Branch American Enterprise Institute for Public Policy, Washington, D.C. 1989. Cutler, Leonhard, “Bush vs. Obama Detainee Policy Post–9/11; An Assessment,” Strategic Studies Quarterly, Summer 2010. Danner, Mark, “The Logic of Torture,” The New York Review of Books, Vol. 51, No. 11, June 23, 2004. (http://www.nybooks.com/articles/17190). Department of Justice, Office of Professional Responsibility, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” July 26, 2009. (http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf). Finn, Peter and Anne E. Kornblut, “ Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility,” The Washington Post, April 24, 2011. (http://www. washingtonpost.com/world/guantanamo-bay-how-the-white-house-lost-thefight-to-close-it/2011/04/14/AFtxR5XE_print.html). Genovese, Michael A., Memo to a New President; The Art and Science of Presidential Leadership. Oxford University Press, New York 2008. Goldsmith, Jack, “What changed U.S. attitudes about counterterrorism policies,” The Washington Post, February 16, 2012. (http://www.washingtonpost.com/opinions/counterterrorism-policies-have-been-legitimized-by-courts-and-consensus/2012/02/13/gIQA5btbGR_story.html?wpisrc=nl_opinions). Healy, Gene, The Cult of the Presidency; America’s Dangerous Devotion to Executive Power. Cato Institute, Washington, D.C. 2008. House Joint Resolution, “Authorizing Use Of United States Armed Forces Against Those Responsible For Recent Attacks Against The United States,” Congressional Record, September 14, 2001, Page H5638 (http://www.fas.org/irp/threat/useofforce.htm). Jones, Gordon S. and John A. Marini, The Imperial Congress: Crisis in the Separation of Powers. Pharos Books, New York 1988. Luban, David, “David Margolis is Wrong,” Slate Magazine, February 22, 2010. (http:// www.slate.com/id/2245531/).

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Mariner, Joanne, “The Indefinite Detention of Citizens and Non-Citizens Under the NDAA,” Verdict, January 18, 2012 (http://verdict.justia.com/2012/01/18/the-indefinite-detention-of-citizens-and-non-citizens-under-the-ndaa). Mariner, Joanne, “Chipping Away at the NDAA,” Verdict, February 29, 2012. (http:// verdict.justia.com/2012/02/29/chipping-away-at-the-ndaa). Mayer, Jane, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals. Doubleday, New York 2008. McAuliff, Michael, “Indefinite Detention Targeted in Democratic Bill On Handling Terrorist Suspects”, The Huffington Post, March 8, 2012. (http://www.huffingtonpost.com/2012/03/08/indefinite-detention-terrorism-bill-_n_1332256.html). McKelvey, Tara, “Covering Obama’s Secret War,” Columbia Journalism Review, May/ June 2011. (http://www.cjr.org/feature/covering_obamas_secret_war.php). Memorandum Opinion: “The President’s Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them,” Memorandum Opinion For The Deputy Counsel To The President, September 25, 2001 (http://www. Usdoj.Gov/Olc/Warpowers925.Htm). Montopoli, Brian, “Is Obama’s Libya Offensive Constitutional?“, CBS News, March 22, 2011 (http://www.cbsnews.com/8301-503544_162-20045927-503544.html). New York Times, The, “Politics Over Principle”, The New York Times, December 15, 2011 (http://www.nytimes.com/2011/12/16/opinion/politics-over-principle.html?). Obama, Barack, “Executive Order – Ensuring Lawful Interrogations,” The White House, January 22, 2009 (http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/). Obama, Barack, “State of the Union Speech”, January 27, 2010. (http://abcnews. go.com/Politics/State_of_the_Union/state-of-the-union-2010-president-obamaspeech-transcript/story?id=9678572). Obama, Barack, “Letter from the President Regarding the Commencement of Operations in Libya,” The White House, March 21, 2011 (http://www.whitehouse.gov/thepress-office/2011/03/21/letter-president-regarding-commencement-operationslibya). Barack Obama, Barack, “Statement by the President on H.R. 1540,” December 31, 2011. (http://www.whitehouse.gov/the-press-office/2011/12/31/statement-presidenthr-1540). Padilla Case, The, “Jose Padilla Sentenced on Terrorism Charges,” MSNBC, January 22, 2008. (http://www.msnbc.msn.com/id/22784470/). Pallitto, Robert M. and William G. Weaver, Presidential Secrecy and the Law. John Hopkins University Press, Baltimore, Maryland 2007. Pfiffner, James P., Power Play; The Bush Presidency and the Constitution. Brookings Institution Press, Washington, D.C., 2008.

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Pfiffner, James P., Torture as Public Policy; Restoring U.S. Credibility on the World Stage. Paradigm Publishers, Boulder 2010. Press release, “President Obama Signs Indefinite Detention Bill Into Law”, December 31, 2011. Reilly, Ryan J., “Obama Administration Pushes Back On Liberal Criticism Over NDAA’s ‘Indefinite Detention’”, January 6, 2012. (http://tpmmuckraker.talkingpointsmemo.com/2012/01/obama_administration_pushes_back_on_liberal_criticism_over_ndaas_indefinite_detention.php). Sands, Philippe, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. Palgrave McMillan, New York 2008. Savage, Charlie, Takeover. The Return of the Imperial presidency and the Subversion of American Democracy. Little, Brown and Company, New York 2007. Savage, Charlie, “Reaganites Reconsider,” The Nation, September 6, 2007. (http:// www.thenation.com/doc/20070924/savage). Savage, Charlie, “Barack Obama’s Q & A,” The Boston Globe, December 20, 2007. (http:// www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/). Savage, Charlie, “Closing Guantánamo Fades as a Priority,” The New York Times, June 25,2010. (http://www.nytimes.com/2010/06/26/us/politics/26gitmo.html). Serrano, Richard A., “Obama to Resume Military Trials for Guantanamo Detainees,” Los Angeles Times, March 08, 2011. (http://articles.latimes.com/2011/mar/08/nation/la-na-obama-guantanamo-20110308) Shane, Scott and Adam Liptak, “Shifting Power to the President,” The New York Times, Sept. 30, 2006. (http://www.nytimes.com/2006/09/30/us/30detain.html?_ r=1&oref=slogin). Shane,Scott, “Waterboarding Focus of Inquiry by Justice Department”, The New York Times, February 23, 2008. Sullivan, Andrew, “Obama Caves Again On Civil Liberties”, December 15, 2011. (http:// andrewsullivan.thedailybeast.com/2011/12/obama-caves-again-on-civil-liberties. html). United States Department of Justice, The, “Department of Justice Withdraws “Enemy Combatant” Definition for Guantanamo Detainees” (http://www.justice.gov/opa/ pr/2009/March/09-ag-232.html). White House, The, “Review of the Detention of Ali Saleh Kahlah,” January 22, 2009. (http://www.whitehouse.gov/the-press-office/ReviewoftheDetentionofAliSalehKahlah/). White House, The, “Memorandum for the Heads of Executive Departments and Agencies. Subject: Presidential Signing Statements,” March 9, 2009. (http://www. whitehouse.gov/the_press_office/Memorandum-on-Presidential-Signing-Statements/).

chapter 13

The Extraterritorial Use of Armed Drones and International Human Rights Law: Diffferent Views on Legality in the US and Europe? Peter Vedel Kessing

Introduction In recent years, there has been a strong interest among States in the use of drones for various law enforcement purposes, including monitoring, controlling and ultimately targeting individuals. It was estimated in 2013 that about 80 States possess drone technology.1 Drones are used by States on their own territory and increasingly also extra-territorially on the territory of other States e.g. in relation to targeted killing of suspected terrorists with armed drones. There has been much debate about the US’s extraterritorial targeted killings of individuals with armed drones outside areas of active hostilities in e.g. Pakistan, Yemen and Somalia.2 Such armed drones are fully controlled and operated primarily by the CIA via satellite from US territory. The US was strongly criticized in 2013 for its extraterritorial drone operations. International human rights organizations like Amnesty International and Human Rights Watch considered them to be in violation of international law, particularly international human rights law (IHRL).3 Similar concerns were raised by two UN Special Rapporteurs in September 2013.4 The use of armed drones outside areas of active hostilities raises a number of complex and difficult questions under international law. Armed drones are 1

2 3

4

Louisa Brooke-Holland, Unmanned Aerial Vehicles (drones): an introduction, UK House of Commons, 5. December 2012. Can be found here http://www.parliament.uk/ briefing-papers/SN06493. Last visited December 2013. See bibliography at the end of the chapter. Amnesty International, Will I be next – US Drone Strikes in Pakistan, October 2013; Human Rights Watch, Joint letter to President Obama on Drone Strikes and Targeted Killings, December 5, 2013. Un Special Rapporteur on extrajudicial, summary and arbitrary executions, A/68/382, September 13, 2013; and UN Special Rapporteur on counter-terrorism and human rights, A/68/389, September 18, 2013.

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often used in the context of an armed conflict regulated by international humanitarian law (IHL), the specific law regulating armed conflict and when individuals can be targeted and killed in times of armed conflict. The protection of life in IHRL is much stronger than the protection of life provided by international humanitarian law and consequently the killing of an individual with an armed drone might be legal under IHL but illegal under IHRL. This chapter focuses on armed drones and IHRL.5 The chapter sets out with a brief description of the US position on the extraterritorial use of armed drones and international law. In the following sections it is discussed whether the extraterritorial killing of individuals with armed drones is in conflict with the right to life in IHRL and more specifically whether the US drone operations are in conflict with IHRL. First it will be described when it is legal pursuant to IHRL to target and kill an individual and which procedural safeguards must be respected. Then it is discussed whether IHRL is applicable when States are targeting individuals extra-territorially on the territory of other States with armed drones. The following section provides a discussion of the application of IHRL in times of armed conflict and the interrelationship between the protection of life in IHRL and in IHL. Finally, concluding observations are provided and it is pointed out that there appear to be different views on the legality of the use of armed drones in the US and in Europe.

The US and the Extraterritorial Use of Armed Drones There is very limited official public information from States on the use of armed drones and compliance with international law. It has been reported by UN Rapporteurs that armed drones have been used in seven countries: Afghanistan, Iraq, Libya, Gaza, Pakistan, Yemen and Somalia.6 In the first four countries drones are undoubtedly used within the geographical scope of an armed conflict in areas of active hostilities. Israel has used armed drones in Gaza, the UK and the US in Afghanistan, and Iraq and the US and NATO in Libya. These drone attacks are undoubtedly covered by 5

6

It is outside the scope of this chapter to provide a thorough discussion of whether the extra-territorial use of armed drones outside areas of active hostilities is in compliance with targeting standards in IHL. See bibliography at the end of the chapter for various articles addressing this question. UN Special Rapporteur on Counter-Terrorism and Human Rights, 2013, supra note 4, para. 29-39.

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targeting standards in IHL and are not as controversial as drone attacks in areas outside active hostilities and will therefore not be the focus of this chapter. Until now, only the US has used armed drones outside the geographical scope of an armed conflict. It has happened in Pakistan, Yemen and Somalia. These attacks carried out by the CIA are secret and confidential, and therefore it is difficult to get an overview of and insight into the attacks and the number of individuals, including civilians, that have been killed in these operations.7 It was reported by the Bureau of Investigative Journalism in 2013 that the US since 2004 has carried out 354 drone attacks in Pakistan. 3,400 individuals were killed, nearly 900 civilians, of whom 176 were children; that the US since 2002 has conducted 63 drone attacks in Yemen, including 38 in 2012, leading to 1,009 individuals being killed, including 173 civilians of whom 35 were children; and that the US since 2007 has conducted 23 drone attacks in Somalia. 170 individuals were killed, including 57 civilians and 3 children. The United States has been reluctant to more thoroughly describe the international legal basis for drone attacks outside the context of armed conflict. However, senior US officials have in speeches at various American universities in 2012 more generally described the international law rationale.8 A Department of Justice (DoJ) White Paper leaked in February 2013 provided a more detailed and thorough account of the legal framework for targeting US citizens.9 While targeting US citizens required that certain procedural safeguards were complied with (see points 1-6 below), non-US citizens could apparently be targeted without similar procedural safeguards. However, in May 2013, President Obama delivered a major address on US counterterrorism policy at the National Defense University in Washington,

7

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See the Bureau of Investigative Journalism in the UK that has established a database about all known US drone attacks in Pakistan, Somalia and Yemen. http://www.thebureauinvestigates.com/category/projects/drones/ (last visited December 2013). See Harold Koh, Legal Adviser, US Department of State, Speech at the Annual Meeting of the American Society of International Law, 25 March 2010; John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Woodrow Wilson International Center for Scholars in Washington, DC, 30 April 2012; Eric Holder, Attorney General, Speech at Northwestern University School of Law, March 5, 2012. All speeches can be found here: http://www.cfr.org/counterterrorism/targeted-killings/ p9627 (visited December 2013). Department of Justice White Paper, Lawfulness of a lethal operation directed against a U.S. citizen who is a senior operational leader of al-Qaeda or an associated force.

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DC, where he announced new policy guidance for US targeted killings.10 Notably, he said that the same “high threshold” set by the administration for targeting US citizens would be extended to non-US citizens. The new policy guidance was explained in further detail in a White House fact sheet of 23 May 2013.11 Most recently the US explained in September 2013 the overall legal justification for targeted killing with armed drones outside areas of active hostilities to the UN Human Rights Committee: The United States is in an armed conflict with al-Qaida, the Taliban, and associated forces, and may also use force consistent with our inherent right of national self-defense. The United States has acknowledged that it has conducted targeted strikes with remotely piloted aircraft against specific targets outside areas of active hostilities. These strikes are conducted in a manner that is consistent with all applicable domestic and international law.12 The US appears to justify drone attacks in two separate but parallel ways. First, the US can use armed force against al-Qaeda in self-defense under Article 51 of the UN Charter and customary international law ( jus ad bellum).13 Second, it is the US position that it can target individuals with armed drones because the US is involved in a transnational non-international armed conflict with “al-Qaeda, the Taliban and associated forces (hereinafter ATA)” ( jus in bello). The US is not involved in a world-wide transnational armed conflict with ATA. This was the position of the Bush-administration (“war against terrorism”) but the view was abandoned by the Obama-administration that has apparently limited the transnational non-international armed conflict between the US and ATA to US operations in Afghanistan. However, the US argues that the geographical scope of this non-international armed conflict is not limited to Afghan territory. Individuals situated in other States, including in Pakistan, Somalia and Yemen, who are directly supporting ATA in the non-international armed conflict in Afghanistan are perceived by the US to 10 11

12 13

The speech can be found here: http://www.cfr.org/counterterrorism/targeted-killings/ p9627 (visited December 2013). White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, May 23, 2013. See US reply to the list of issues from the UN Human Rights Committee, September 13, 2013, para. 34. Likewise Harold Koh, 2010, p. 7. It falls outside the scope of this chapter to deal with jus ad bellum issues.

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be within the scope of the armed conflict and therefore they can be targeted pursuant to targeting standards in IHL. The more specific standards and procedures followed by the US when targeting individuals with drones outside areas of active hostilities are more precisely described in the White House fact sheet of May 2013 and particularly in the leaked DoJ White Paper. Lethal force will only be used if the following six conditions are met: 1. The decision to target is taken by high-ranking officials in the US government 2. The targeted individual is a “Senior operational leader” of al-Qaeda 3. Who poses a “continuing imminent threat to US persons” 4. It is assessed that capture is not feasible at the time of the operation 5. Near certainty that the terrorist target is present and that non-combatants will not be injured or killed (“collateral damage”) 6. It is assessed that the relevant governmental authorities in the country where the action is contemplated cannot or will not effectively address the threat to US persons. None of these safeguards flows directly from IHL. Under IHL combatants and civilians taking direct part in hostilities can be targeted for the duration of hostilities without any further safeguards.14 At first glance the safeguards seem to be inspired by safeguards known in international human rights law, including the requirements of “immediate danger” and “arrest”.15 However, this is not the case for two reasons. First, the US has persistently held that is not bound by IHRL when acting outside US territory.16 Second, it is the US view that it is involved in a non-international armed conflict with alQaeda. The US affirmed in 2013 for the first time that IHRL continues to apply during armed conflict. An armed conflict does not per se suspend the operation of IHRL. However, it is the firm US position that the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are found in IHL displacing IHRL as lex specialis.17 14 15 16 17

See e.g. Article 51 in the AP I of 1977. See section below (The necessity requirement) for further discussion of whether the US understanding of these safeguards complies with current understanding in IHRL. See e.g. the Fourth Periodic Report of the US to the UN Human Rights Committee, May 22, 2012, para. 505. Fourth Periodic Report..., 2012, para. 507. This view is discussed in more detail in a subsequent section (The right to life in armed conflict).

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On the contrary, the protective safeguards seem to be derived from internal US law. This is clearly stated in the leaked White Paper from the US Department of Justice clarifying that the protective safeguards have their basis in the US Constitution and federal statutes.18 The US position on extraterritorial applicability of IHRL and the interrelationship between IHL and IHRL in times of armed conflict will be further discussed in sections 4 and 5. But first it will discussed in section 3 when it is justified under IHRL to use lethal force and more specifically whether the US drone safeguards are in compliance with IHRL.

Armed Drones and the Right to Life under International Human Rights Law Pursuant to IHRL, no-one shall be arbitrarily deprived of their right to life. The right to life is an absolute right. It is as observed by the Human Rights Committee a supreme right from which no derogation is permitted even in time of armed conflict or public emergency threatening the life of the nation.19 But the question remains when a specific targeted killing is “arbitrary”. When Can an Individual be Targeted by Armed Drones? Lethal targeting must fulfill two requirements: It must be proportionate and necessary. While the proportionality requirement imposes an absolute ceiling on the permissible level of force based on the threat posed by the suspect to others, the necessity requirement imposes an obligation to minimize the level of force applied, regardless of the level of force that would be proportionate.20 The Proportionality Requirement The proportionality requirement implies that it is only legal to kill a person in self-defense or in defense of others against death or serious injury. It includes a difficult balancing act between the right to life of the perpetrator and of the

18 19 20

See the leaked DoJ paper, supra note 9. UN, Human Rights Committee, General Comment No. 06: The right to life (art. 6), 30 April 1982. General Comment No. 06, 1982, para. 29.

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potential victim. When is it legal to kill one individual in order to save and protect the life or physical integrity of another individual? Two elements can be emphasized: First, a general deliberate “shoot to kill” policy would be in conflict with the right to life under human rights. The use of lethal force must be a strictly unavoidable consequence of an operation pursuing a legal purpose e.g. effecting an arrest. Even though the purpose of a US armed drones program obviously is to kill the targeted individual it can hardly be described as a general “shoot to kill” policy. It is assessed in each specific individual situation whether capture is feasible, see more in the following section (The necessity requirement). Second, lethal force can only be used to prevent a future loss of life, not as a punishment for an act committed earlier.21 In general it will not be proportionate to shoot a perpetrator who is not armed and /or who has not committed serious crimes involving bodily harm. The perpetrator must pose an ongoing danger for other individuals. The mere membership of a terrorist organization would not in itself under IHRL be sufficient evidence of an ongoing future risk.22 It must be documented that the person based on his own actions and future plans for attacks poses a specific and individual threat to the lives of others.23 The US will, as explained above, only use armed drones against individuals who pose a continuing and ongoing threat. In general it must be perceived to be proportionate to target and kill a wellknown al-Qaeda terrorist who is known to have planned and carried out lethal terror attacks and continues to be involved in such activities. It is within the “absolute ceiling on the permissible level of force” that can be used. However, the question remains whether the necessity requirement is complied with.

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Except for the lawful application of the death penalty under Article 6(2) of ICCPR. On the contrary, under IHL where it is generally agreed that civilians who are members of an armed group and perform a continuous combat function in the group permanently lose their protection against attack, see the ICRC Guidance Paper on Direct Participation in Hostilities, 2008. Unlike under IHL, where membership of an armed group means that the person permanently loses protection against deadly attacks and becomes a legitimate military target. The ICRC and some researchers require in addition that the person performs a continuous combat function within the armed group.

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The Necessity Requirement The necessity requirement contains two elements. The future threat must be imminent, and the least harmful means of power e.g. arrest must be used before the use of deadly force. The imminent danger requirement implies that the threat is just about to materialize. The threat must not only be ongoing it must also be imminent before it is necessary to use lethal force. However, in practice it can be difficult to determine when a threat is imminent. Certain international soft-law instruments suggest that not only an immediate threat to life can legitimize use of lethal force, but also serious threats to life in the context of particularly serious crimes. See e.g. the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials: Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.24 (Italics added). The US understanding of “imminent” is elaborated in the DoJ White Paper. The US seems to apply a broader interpretation of “imminence” than the common understanding in IHRL. It is not required that the US have evidence that a specific attack on US persons and interests will take place in the immediate future but only more generally that there is an ongoing threat (the proportionality requirement) and that targeting is feasible (“window of opportunity”): The threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. …Thus, a decision maker determining whether an al-Qa’ida operational leader presents an imminent threat of violent attack against 24

See para. 9. The Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. Likewise the Inter-American Human Rights Commission, Report on Terrorism and Human Rights, 22 October 2002, para. 111.

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the United States must take into account that certain members of alQa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.25 The least harmful means requirement implies that arrest always must be tried prior to the use of deadly force. In a situation where arrest is impossible due to risk of death or serious injury of involved law enforcement personnel or others, a clear warning of the intent to use firearms should be given unless it is clearly inappropriate or pointless in the circumstances of the incident.26 In a situation where the danger is clearly imminent and just about to materialize arrest and warning is not required if it is assessed by the law enforcement officials in the concrete situation that the danger can only be countered by immediate use of lethal force. This was evidenced in the ECtHR’s decision in McCann et al 27/9 1995, when British SAS (“Special Air Service”) soldiers shot dead three suspected IRA terrorists in Gibraltar (under British jurisdiction) in Spain, who they (wrongly) thought were just about to detonate a bomb in the center of Gibraltar. The three suspected terrorists were shot in a situation where they actually posed no immediate danger, and where they could easily have been arrested. The Court found that there was no violation of the victims’ right to life as the soldiers had acted in good faith based on a real and well-founded belief that it was absolutely necessary in the situation to shoot the three terrorists in order to protect and save the lives of others. However, the Court criticized the operation for not being properly planned. The UN Human Rights Committee is up till now the only international human rights body which has assessed and taken a position on a State’s use of targeted killings by missiles and the right to life under international human rights law. In the Committee’s concluding observations from 2003 the Com-

25 26

DoJ White Paper, see note 9, p. 8. UN Basic Principles ..,. 1990, para. 10.

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mittee expressed concern over Israel’s targeted killings of suspected terrorists in the Occupied Territories.27 The Committee recommended that: The State party should not use “targeted killings” as a deterrent or punishment. The State party should ensure that the utmost consideration is given to the principle of proportionality in all its responses to terrorist threats and activities… Before using deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted [the necessity requirement]. 28 The US position on capture before targeting is elaborated in the DoJ White Paper. The capture requirement seems to be applied in a more flexible way than under IHRL. Capture is only required when feasible and it is not perceived to be feasible if the territorial State (the State where the drone attack is carried out) will not give its consent to capture of the person: Regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.29 While the US extraterritorial use of armed drones outside areas of active hostilities might be in compliance with the proportionality requirement it is much more difficult to reconcile the US practice with the necessity requirement in IHRL as currently interpreted by IHRL bodies.

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Described by the Israeli Government as “preventative strikes which causes the death of terrorist in Judea, Samaria, or the Gaza Strip”. See the Israeli Supreme Court sitting as the High Court of Justice, HCJ 769/02, December 13, 2006, para. 1 and below (section: Does international human rights law regulate extra-territorial targeting?). UN Human Rights Committee, Concluding Observations: Israel, CCPR/CO/78/ISR, August 21, 2003, para. 15. See also Guerrero v. Colombia, Communication no. R.11/45, February 5, 1979, UN Doc. Supp. No. 40, A/37/40, March 31, 1982, para 13.3. DoJ, White Paper, see note 9.

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Procedural Safeguards of the Right to Life in International Human Rights Law IHRL provides a number of procedural safeguards to protect the right to life. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.30 Planning and Timing of Lethal Operations It is well-established in case-law and opinions from human rights bodies that States must plan and conduct law enforcement operations in such a way that the need to use deadly force is prevented or minimized. This is particularly true in situations where the authorities could foresee or had reason to believe that the situation may evolve, and it may be necessary to use force. The same is required in the context of an armed conflict. The European Court of Human Rights (ECtHR) has laid down in several cases that military operations in the context of an armed conflict must be carefully planned and conducted in order to “avoid or minimize, to the greatest extent possible, the risk of life, both for the persons at whom the measures [the use of force] were directed and for civilians.”31 Military operations must be planned and organized in such a way that individuals are not exposed to undue danger of losing their life and States must take all feasible precautions in the choice of means and methods of a military operation.32 Another important constraint is that the decision to use lethal force should be taken as shortly as possible before the time when that decision is executed, in order to take into account a possible “last-minute” change of mind or behavior by the suspect. Only in the most exceptional cases will the State not be required to allow the suspect the opportunity to surrender.33 It has been debated who can be responsible for operating armed drones. Should it be limited to military personnel within the military chain of com30 31 32

33

See e.g. ECtHR, Al-Skeini v. United Kingdom, July 7, 2011, para. 163. See e.g. the ECtHR, Kerimova v. Azerbaijan, May 3, 2011, para. 248; Isayeva (II) v. Russia, February 24, 2005, para. 199 and Ergi v. Turkey, July 28, 1998, para. 79-80. Under IHL collateral damage is accepted, see e.g. art 51 (5) in Additional Protocol I from 1977 as long as the loss of civilian life is not excessive in relation to the concrete and direct military advantage anticipated. See Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions, by Christof Heyns, A/66/330, 30 August 2011, para. 35.

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mand or could the responsibility be transferred to civilian authorities e.g. an intelligence agency? IHRL does not preclude that the responsibility of targeting is assigned to a civilian intelligence service as long as it is complying fully with IHRL obligations. The same international human rights standards apply whether the killing is performed by the military or by a civilian intelligence agency. The US practice where armed drones are operated by CIA officials is therefore not in itself in conflict with IHRL.34 The US emphasizes that drone attacks are very carefully prepared and planned. Nevertheless, it can be questioned whether all possible measures are taken not only to save the life of civilians in the targeted area (collateral damage) but also to save the life of the targeted individual. Efffective Independent and Impartial Investigation Furthermore, the obligation to protect life in IHRL also requires that there shall be conducted an effective official independent investigation when individuals have been killed as a result of the use of force by State agents including in times of armed conflict. In order for an investigation to be “effective” the investigation must be conducted independently (both institutionally and practically); impartially (without personal bias); effectively and thoroughly (the means must achieve the intended purpose of uncovering the truth); promptly (avoiding delays in the commencement and duration); and transparently (providing public scrutiny and addressing victims’ rights).35 These procedural safeguards protecting the right to life are applicable in peacetime and in times of armed conflict and also when a State is targeting individuals extra-territorially with armed drones. 34

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To the extent armed drones operations are carried out in the context of an armed conflict it is not in itself a war crime under IHL if a civilian, including an intelligence agent, is responsible for the targeting. Under IHL civilians are not prohibited from participating in hostilities but they lose protection against being targeted themselves and they do not enjoy immunity under domestic law for their conduct. As summarized by the Turkel Commission, Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law, Second Report, February 2013, paras. 137-138. See also UN, Principles on the Effective Prevention and Investigation of Extrajudicial, Arbitrary and Summary Executions, op. cit. and Human Rights in Palestine and other Occupied Arab Territories: Report of United Nations Fact Finding Mission on the Gaza Conflict, (Goldstone Report), 15 September 2009, paras. 1601-1632.

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The human rights duty to investigate possible violations of the right to life applies directly to the targeting State responsible for the killing. However, as the territorial State (the State where the drone strike is carried out) is under a positive obligation to protect the right to life of all individuals on its territory (within its jurisdiction) the territorial State will arguably also be under a positive obligation to take all possible measures to undertake an effective and independent investigation of the drone strike, see further the section below on the territorial state’s positive human rights obligations to protect life. Such an independent impartial investigation of drone attacks is clearly not carried out in the US. Sum-up on the Right to Life in IHRL – Substantial and Procedural Obligations The right to life in IHRL implies as discussed above that: – armed drone attacks are not part of a deliberate, general and automatic “shoot-to-kill” policy, – drone attacks are used only against individuals who pose a clear and ongoing future danger, – the danger is imminent and just about to materialize, – it is assessed in each concrete situation immediately before targeting whether the danger can be averted by use of other milder forms of force e.g. arrest or warning shots, – drone operations are planned and controlled in such a way that the use of lethal force is avoided or minimized to the greatest extent possible, – well-based and most thoroughly verified information about the identity and activity of the potential target is established (ex ante identification and verification), and – an effective ex post independent and impartial official investigation of the drone attack is carried out after the attack and that, if appropriate, compensation is awarded. International human rights law provides both from a substantial and procedural point of view a strong and effective protection of the right to life. As concluded by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions the use of drones outside the context of armed conflict is “almost never likely to be legal. A targeted drone killing in a State’s own terri-

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tory, over which the State has control, would be very unlikely to meet human rights law limitations on the use of lethal force.” 36 It is evident that the protection of life in IHRL is much stronger and more far-reaching than the protection provided by standards in IHL. Due to the difference in standards and levels of protection a targeted killing of an individual with an armed drone might be justified and legal if assessed pursuant to standards in IHL and illegal if considered under IHRL. The US extraterritorial drone attack might be justified under targeting standards in IHL but appears to be in conflict with both substantive and procedural right to life standards in IHRL as currently interpreted by human rights bodies. Consequently, when considering the legality of a specific targeted drone attack it is essential to establish first whether IHRL is applicable to the extraterritorial drone attack (see the following section); and second whether the drone attack is carried out in the context of an armed conflict where right to life standards in IHRL must relate to and possibly be limited by targeting standards in IHL (to be dealt with in the section, The right to life in times of armed conflict).

Does International Human Rights Law Regulate Extraterritorial Targeting? A targeted killing with an armed drone carried out by a State on its own territory is obviously under the human rights “jurisdiction” of the State and regulated by the State’s international human rights obligations. It will only be legal if it complies with the substantial and procedural requirements described above in the section on armed drones and the right to life under international human rights law. It is a controversial and unsettled question whether a State is bound by its international human rights obligations when targeting individuals on another State’s territory with armed drones. Do international human rights standards – more specifically the right to life – apply to and regulate extraterritorial targeting with armed drones? It is possible to identify four different ways in which international human rights standards might apply to and regulate a State’s extraterritorial use of armed drones as further discussed in the following four sections. 36

Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions, Philip Alston, A/HRC14/24/Add. 6, 28 May 2010, para. 85.

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Extraterritorial Application of International Human Rights Law Conventions Pursuant to international human rights conventions a State Party is obliged to respect and protect the human rights of all individuals under the “jurisdiction” of the State. Under the International Covenant on Civil and Political Rights (ICCPR), States Parties are required by Article 2 (1) to respect and to ensure the Covenant rights to all individuals within their territory and to all persons subject to their jurisdiction. The term “jurisdiction” has been interpreted by the Human Rights Committee to mean that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of the State Party. This principle also applies to those within the power or effective control of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.37 The Human Rights Committee established already in 1981 in the Burgos case concerning kidnapping of individuals by Uruguayan agents in neighboring States that State Parties can be held accountable for violations of the ICCPR their agents commit upon the territory of another State. More generally the Committee emphasized that: It would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.38 The extraterritorial application of the ICCPR has further been confirmed by the International Court of Justice (ICJ). The Court has observed that, while the “jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natu-

37

38

UN Human Rights Committee: General Comment No. 15 (1986). The UN Torture Committee has likewise found that the UN Convention against Torture (UNCAT) is applicable when a State exercises de jure or de facto control over an individual on another States territory. See UN Committee Against Torture, General Comment 2: Implementation of article 2 by State Parties, UN Doc CAT/C/GC/2 (2008). Lopez Burgos v. Uruguay, Communication no. 52/1979, July 29, 1981, para. 12.3.

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ral that, even when such is the case, State parties to the Covenant should be bound to comply with its provisions.”39 However, the question remains whether the killing of individuals from the air with drones or aircrafts is sufficient to establish jurisdiction under the ICCPR. Does the targeting State exercise “effective control” or “de facto control” over the targeted individuals with the consequence that they are under the human rights jurisdiction of the targeting State? The Human Rights Committee has not directly dealt with this question. But in relation to the Human Rights Committee’s assessment of Israel’s periodic reports the Committee implicitly seems to lay down that Israel is responsible under the ICCPR when targeting individuals extra-territorially in the West Bank and Gaza. It is, however, a rather special situation in Israel, Gaza and the West Bank as underlined by the Committee: In the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s [Israel’s] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.40 (Italics added). The European Court of Human Rights has likewise found that the ECHR is applicable when a State Party exercises ‘effective control of an area’ on the territory of another State41 or “authority and control over individuals” on another State’s territory.42 In the famous Bankovic case of 2001 the ECtHR found that airstrikes were insufficient to establish a jurisdictional link between the Serbian victims and the NATO member States.43 Airstrikes do not amount to exercising effective 39

40

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ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004), para. 109. Se likewise Case concerning Armed Activities on the Territory of the Congo, (2005). UN Human Rights Committee, see note 28, para. 11. Reiterated by the Committee in its Concluding Observations of 3 September 2010 of Israels’s third periodic report to the Committee, para. 5. See the line of cases concerning Turkish control over Northern Cyprus referred to in e.g. ECtHR, Al-Skeini and Others v. The United Kingdom, July 7, 2011 (Grand Chamber), paras. 138-140. ECtHR, Al- Skeini..., 2011, para. 136. ECtHR, Bankovic and Others v. Belgium and 16 other contracting States, December 12, 2001 (Grand Chamber).

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“authority and control” over the targeted individuals so as to bring them under the European Convention on Human Rights (ECHR) jurisdiction of the targeting States.44 Hence, it is open to discussion whether ECHR is applicable to extraterritorial drone strikes based on the ‘authority and control’ over individuals jurisdiction. More recent case-law from the ECtHR can possibly indicate a change in the position of the Court. In the 2007 Pad case the Court found that the ECHR was applicable to a State Party’s killing of individuals from helicopters on another State’s territory (in the border areas between the targeting State Turkey and the territorial State Iran).45 In the 2006 Isaak case the ECHR was applicable to killing of an individual with firearms in a UN buffer zone.46 Moreover, the ECtHR has recently indicated in the Al-Skeini case from 2011 that the ECHR – in addition to situations where a State exercises effective control over an area or individual on another State’s territory – also is applicable to extraterritorial acts when a State Party is exercising ‘public authority’ on another State’s territory through the ‘consent, invitation or acquiescence of the Government of that territory.’47 In the Al-Skeini case the Court found that individuals killed by British military ground troops during patrol in 2003 in British-occupied areas in Iraq – 44

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The court further discussed and denied a cause-and-effect notion of jurisdiction as argued by the claimants. The responsibility for a human rights violation does not in itself lead to “jurisdiction” in ECHR. ECtHR, Pad v. Turkey, June 28, 2007. However, it was not disputed in the case that the victims were within the ECHR jurisdiction of Turkey the targeting State. See para. 54: “In the instant case, it was not disputed by the parties that the victims of the alleged events came within the jurisdiction of Turkey. While the applicants attached great importance to the prior establishment of the exercise by Turkey of extraterritorial jurisdiction with a view to proving their allegations on the merits, the Court considers that it is not required to determine the exact location of the impugned events, given that the Government had already admitted that the fire discharged from the helicopters had caused the killing of the applicants’ relatives, who had been suspected of being terrorists.” ECtHR, Isaak v. Turkey, September 28, 2006. The Court concluded: “..[E]ven if the acts complained of took place in the neutral UN buffer zone, the Court considers that the deceased was under the authority and/or effective control of the respondent State through its agents. It concludes, accordingly, that the matters complained of in the present application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.” ECtHR, Al-Skeini..., 2011, para. 135.

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areas over which the UK exercised some of the “public authority” normally to be exercised by the Iraqi Government – fell within the UK jurisdiction under Article 1 of the ECHR, and consequently the UK was bound by the ECHR. The same could arguably be the situation if a State is killing individuals not by ground troops but “from the sky” by armed drones or air fighters in an area where the targeting State is exercising “public authority” normally exercised by the territorial State inter alia by being responsible for the security and maintenance of civil law and order, e.g. as an occupying power. Furthermore, it could be discussed whether operating a drone program on another State’s territory – with its consent – in itself can amount to an exercise of “public authority”. The ECtHR did not clarify in the Al-Skeini case what is required for a State to exercise “public authority normally to be exercised by the territorial State.” Does it require a regular occupation as defined in IHL? The UK was undoubtedly an occupying power in Iraq in 2003. Or can lesser degrees of control and authority suffice? The ECtHR referred in its decision in Al-Skeini to three earlier judgments – concerning the exercise of judicial authority and primary child education on other States’ territory – where the Court had found that the involved State Parties were exercising “public authority” on the territory of another State. These judgments seem to imply that less intense form of control and authority can establish “public authority.” The Court stated more generally in the Al-Skeini case: Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State. (Italics added).48 It could arguably be claimed that a State Party controlling and operating a drone-program in the airspace of another State (the territorial state) with its knowledge and consent is exercising executive “public authority” normally to be exercised by the territorial State and this would be enough to establish jurisdiction after Article 1 in the ECHR. However, it must be noted that the Court emphasized in the Al-Skeini case that the circumstances – and supposedly the jurisdiction – was of an exceptional character. 48

ECtHR, Al-Skeini..., 2011, para. 135. The Court referred to its judgments in Drozd and Janousek v. France and Spain, June 26, 1992; Gentilhomme and Others v. France, May 14, 2002 and X and Y v. Switzerland, July 14, 1977.

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The Inter-American Commission on Human Rights has also dealt with extraterritorial lethal targeting by military aircrafts. In Armando Alejandre v. Cuba (”Brothers to the Rescue”) the Cuban Air Force shoot down two small civilian unarmed aircraft in international airspace killing four people. The Commission found: … that the victims died as a consequence of direct actions of agents of the Cuban State in international air space. The circumstance that the facts occurred outside the Cuban jurisdiction does not restrict nor limit the Commission’s competent authority ratione loci, for, as has already been indicated, when agents of a State, whether they be military or civil, exercise power and authority over persons located outside the national territory, its obligation to respect human rights, in this case the rights recognized in the American Declaration, continues. In the opinion of the Commission, there is sufficient evidence to show that the agents of the Cuban State, despite being outside its territory, subjected to their authority the civil pilots of the “Hermanos al Rescate” organization. Consequently, the Commission has competent authority ratione loci to apply extraterritorially the American Declaration to the Cuban State for the events which occurred on February 24, 1996, in international air space.49 (Italics added). The Commission found that the Cuban aircrafts exercised “power and authority” when shooting down the civilian aircraft in international airspace. The fact that the civilian aircraft was shot down in international airspace – and not in the territorial airspace of another State – does not seem to be decisive for the Commission. To sum-up, opinions and case-law from human rights bodies clearly demonstrates that human rights conventions continue to apply when States are acting outside their territory exercising control and authority over areas and individuals. However, it is not as of yet clearly established whether a State targeting individuals on the territory of another States by armed drones or airstrikes is exercising sufficient control and authority over the targeted individuals to establish “jurisdiction” under human rights conventions and thus whether the targeting is regulated by human rights conventions. This view is not accepted by the US. It is the persistent US position that IHRL conventions only applies to individuals within the territory of US. The 49

Armando Alejandre v. Cuba (”Brothers to the Rescue”), IACHR Report No. 86/99, Case No. 11.589, September 29, 1999, para. 25.

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US does not accept that IHRL is applicable to its extraterritorial operations, including the use of armed drones. This view was most recently affirmed in the US periodic state report to the UN Human Rights Committee: The United States in its prior appearances before the Committee has articulated the position that Article 2(1) would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction. The United States is mindful that in General Comment 31 (2004) the Committee presented the view that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” The United States is also aware of the jurisprudence of the International Court of Justice (“ICJ”), which has found the ICCPR “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as positions taken by other States Parties.50 But the question remains whether there are other ways the US can be responsible under IHRL for extraterritorial drones operations. Extraterritorial Application of the Right to Life under Customary International Law It is argued that the right to life has the status of customary international law and the reach of customary international law and, unlike human rights conventions, is not limited to situations occurring “within the jurisdiction” of States. On the contrary the customary right to life must be respected and protected by States wherever they act, including when States are targeting individuals on the territory of other States.51 The International Committee on the Red Cross (ICRC) has stated: 50 51

See note 10, para. 505. See e.g. Anthony E. Cassimatis, “International Humanitarian Law, International Human Rights Law, and Fragmentation of International Law,” International & Comparative Law Quarterly, Vol. 56, (2007), p. 623-640. Likewise John Cerone, “Human Rights on the Battlefield,” in Stéphanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith (eds.), Human Rights in Turmoil, Martinus Nijhoff Publishers, 2007, p. 97-133.

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A legal issue that could be posed in this scenario [extraterritorial targeted killings with armed drones] is the extraterritorial applicability of human rights law based on the fact that the state using force abroad lacks effective control over the person (or territory) for the purposes of establishing jurisdiction under the relevant human rights treaty. It is submitted that customary human rights law prohibits the arbitrary deprivation of life and that law enforcement standards likewise belong to the corpus of customary human rights law.52 (Italics added). Two UN Special Rapporteurs on extrajudicial, summary and arbitrary executions have also found that the right to life is customary international law and applicable to extraterritorial killings: The right to life [has status] as a general principle of international law and a customary norm. This means that, irrespective of the applicability of treaty provisions recognizing the right to life, States are bound to ensure the realization of the right to life when they use force, whether inside or outside their borders.53 A similar argument has been raised in a report from the European Parliament: The international law prohibition on murder and extrajudicial killings does not depend on the applicability of particular human rights treaties, but can safely be regarded as part of customary law, and even as a general principle of law binding upon all States at all times and in all places.54 The US has not explained its view on whether the right to life has status as customary international law and as such is applicable to extraterritorial drone operations.

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ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, Geneva 2011, 31IC/11/5.1.2, p. 22. UN Special Rapporteur on extrajudicial, summary and arbitrary executions, see note 4, para. 43; and Special Rapporteur on counter-terrorism and human rights, see note 4, para. 60. Nils Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare, European Parliament, Directorate General for External Policies, Policy Department Study (Brussels, 2013), p. 18.

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Extraterritorial Efffect of International Human Rights Law The discussion in the two preceding sections on the extraterritorial application of IHRL is based on the assumption that it is an extraterritorial act when a State targets and kills an individual in another State with an armed drone. However, since armed drones are entirely controlled and operated from the territory of the targeting State it could be argued that the targeting killing is actually carried out from the territory of the targeting State. It is not an extraterritorial but a territorial act. The European Court of Human Rights has in its case-law distinguished between the extraterritorial application and the extraterritorial effect of the ECHR. See e.g. the Court decision in Georgia v. Russia from 2011: The Court reiterates in this connection that although Article 1 sets limits on the reach of the Convention, the concept of “jurisdiction” under this provision is not restricted to the national territory of the High Contracting Parties. For example, the responsibility of Contracting Parties can be involved because of acts of their authorities which produce effects outside their own territory.55 Whereas extraterritorial application of ECHR concerns decisions and acts a State carries out outside its territory on the territory of another State, the extraterritorial effect of ECHR concerns decisions and acts a State undertakes on its own territory which leads to a human rights violation on the territory of another State. The classical example of extraterritorial effect is the situation where a State decides to extradite or expel a foreigner present on its territory to another State where there is a real risk that the person will be exposed to torture, inhuman or degrading treatment. In the Soering case from 1989 the ECtHR found that the UK was responsible under the ECHR for extraditing the applicant to a real risk of ill-treatment in the USA (prolonged stay in a death-row). The Court explained that the: … Liability incurred by the extraditing Contracting State [UK] by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.56 (Italics added).

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ECtHR, Georgia v. Russia, December 13, 2011, para. 66. ECtHR, Soering v. Germany, July 7, 1989, para. 91.

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It could be argued mutatis mutandis that a targeted killing is controlled and carried out from the territory of the targeting State and these actions have as a direct consequence that an individual in another State is – or might be – exposed to proscribed arbitrary killing. In the later Andreou case of 2008 the ECtHR dealt with a situation where Turkish soldiers situated in the TRNC (the northern part of Cyprus controlled by Turkey) opened fire and killed a woman in the Southern part of Cyprus controlled by Greece during a demonstration and the ensuing turmoil. The ECtHR found that: In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as “within [the] jurisdiction” of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.57 (Italics added). Although a drone is not fired from close range there is a direct and immediate causality between the targeting State’s operation and control of an armed drone from its territory via satellite and the targeted killing by the drone in another State. The Territorial State’s Positive Human Rights Obligations to Protect Life While in the three previous sections it has been discussed whether the targeting State’s human rights obligations regulate its extraterritorial targeting by armed drones it shall be discussed in this section whether the human rights obligations of the territorial State (i.e. the State where the targeted individual is situated) can influence and indirectly regulate the conduct of the targeting State. It is firmly established in case-law and opinions from international human rights bodies that the right to life confers a positive duty on States to actively protect the right to life of individuals on their territory or under their jurisdiction. Hence a territorial State is responsible for respecting and protecting the human rights of individuals on its territory, including their right to life. Con57

ECtHR, Andreau v. Turkey, June 3, 2008.

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sequently, the territorial State cannot consent to lethal targeting carried out by a targeting State on its territory in violation of the right to life under IHRL. It is under a positive due diligence obligation to prevent other States from violating human rights obligations on its territory. This principle is supported by the ECtHR’s decision in the 2012 Catan case concerning violations of the ECHR in the separatist Moldavian Republic of Transdniestria (under decisive influence and control of Russian) established on Moldovan territory. The Court stated that: Although Moldova has no effective control over the acts of the “MRT” in Transdniestria, the fact that the region is recognised under public international law as part of Moldova’s territory gives rise to an obligation, under Article 1 of the Convention, to use all legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there. The Court will consider below whether Moldova has satisfied this positive obligation.58 This implies that the territorial State must do its utmost with all possible legal and diplomatic means to make the targeting state guarantee and respect the right to life on its territory and stop targeting individuals with armed drones in conflict with the right to life under IHRL. To sum-up, there are different ways international human rights standards can be applicable and regulate a State’s extraterritorial targeted killing with armed drones. The targeting State’s own human rights obligations might be applicable due to 1) the extraterritorial application or 2) the extraterritorial effect of human rights conventions. Furthermore, 3) the right to life under international customary law will arguably be applicable and set-up limits for a State’s extraterritorial targeted killings by armed drones. In any event, 4) the human rights obligations of the territorial State might influence and limit a targeting State’s conduct of lethal operations. The US has persistently denied that international human rights conventions, including the ICCPR, are applicable when acting outside US territory. However, the US might as described be bound by IHRL in other ways (cf. 2-4, above) when carrying out extraterritorial drone attacks. Most US drone attacks are carried out in the context of an armed conflict and the question is whether IHRL continues to apply during armed conflict and if so how standards in IHRL and IHL can interrelate. 58

ECtHR, Catan and Others v. Moldova and Russia, 19 October 2012, para. 110. See likewise ECtHR, Ilascu and Others v. Moldova and Russia, 8 July 2004.

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The Right to Life in Times of Armed Conflict The protection of life in IHRL is, as mentioned earlier, much stronger and more far-reaching than in IHL. While IHRL in general requires that lethal force is used only as a last resort and that the least intrusive power must always be used first, including arrest, IHL generally authorizes that States may use lethal armed force as a first resort against enemy combatants and civilians taking direct part in hostilities. If a targeted killing with an armed drone is assessed on the basis of IHL it can undoubtedly be legal depending on the status of the targeted individual and the specific factual circumstances of the strike. On the other hand, there is a presumption that the same strike would be illegal if assessed on the basis of IHRL – a difference that can generally be explained due to the different origin of the two sets of rules. IHL was developed for armed conflict situations, while IHRL in principle was elaborated for peacetime situations. In this section we shall first look at the general interrelationship between IHL and IHRL in international and non-international armed conflict and then more specifically discuss how targeting standards in IHL and the right to life standards in IHRL should interrelate when the the US is targeting individuals with armed drones in third countries, e.g. in Pakistan, Yemen and Somalia within (or outside) the geographical scope of a non-international armed conflict between the US and ATA in Afghanistan. The Interrelationship between Targeting Standards in IHL and the Right to Life Standards in IHRL Legal and jurisprudential developments over the past decade clearly confirm the concurrent application of IHL and IHRL in times of armed conflict. The UN Human Rights Committee has generally established that the ICCPR applies also in situations of armed conflict. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.59

59

See UN Human Rights Committee, General Comment No. 29.

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The International Court of Justice has also examined the status of human rights in times of international armed conflict60 and in times of occupation61 and has found that human rights obligations continue to apply in these situations. The Court has not yet had the opportunity to deal with cases and situations concerning the right to life under non-international armed conflict. As regards the interrelationship between international humanitarian law and human rights law in times of international armed conflict (the Congo case) and occupation (the Wall case) the Court has at a more general level stated that international humanitarian law and human rights law may interrelate in three possible ways: “Some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”62 More specifically concerning the right to life under international armed conflict the ICJ found in the Nuclear Weapons case from 1996 that the test of what is an arbitrary deprivation of life falls to be determined by the applicable lex specialis, namely, the law applicable in [international] armed conflict which is designed to regulate the conduct of hostilities.63 At least for the issue to be determined by the Court i.e. whether the use of a certain weapon – nuclear weapon – was lawful. In situations where armed drones are used in a non-international armed conflict it is more complicated to argue that a possible norm conflict between international humanitarian law and international human rights should be settled on the basis of the lex specialis principle. Non-international armed conflict is only regulated in treaty law in common Article 3 in the four Geneva Conventions and in Additional Protocol II (AP II) if applicable. Hence, IHL does not provide detailed and precise regulation of targeting in non-international armed conflict, which can inform or even take precedence over the right to life in IHRL.

60

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ICJ, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, July 8, 1996, para. 25; and Case concerning Armed Activities on the Territory of the Congo, December 19, 2005, para. 220. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, June 9, 2004, para. 106. ICJ, Legal Consequences... , 2004.. ICJ, Legal Consequences..., 2004. For a similar understanding of ICJ’s practice see the International Law Commission, Report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, A/CN.4/L.682, April 13, 2006, para. 60.

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Furthermore, it is stressed – admittedly in rather ambiguous terms – in the preamble to AP II that human rights is applicable and presumably must be taken into consideration in times of non-international armed conflict.64 Nevertheless, the Inter-American Human Rights Commission has in situations of non-international armed conflict either directly applied rules of international humanitarian law or informed its interpretations of relevant provisions of the American Convention by reference to rules of international humanitarian law.65 On the contrary it has been argued that the right to life under IHRL should be considered the lex specialis in times of non-international armed conflict if there is inconsistency with standards in IHL in a concrete situation. This seems to be the position of the UN Office of the High Commissioner for Human Rights which generally has stated: Some have interpreted – by analogy with international armed conflicts – that international humanitarian law permits the authorities to shoot to kill [a fighter in non-international armed conflict]. Under international human rights law, a person must be arrested and a graduated use of force must be employed. In this case, taking into account the extent of Government control (if any) over the place where the killing occurs, international human rights law should be considered as the lex specialis.66 The European Court of Human Rights has decided a number of cases involving non-international armed conflict but the Court has never directly in its reasoning referred to standards in international humanitarian law. On the contrary, the Court seems to decide such cases strictly on the basis of the ECHR and will not resort to IHL in order to interpret the meaning of the right to life. Nevertheless, the Court does take into consideration the difficult factual situation in an armed conflict and seems to apply a less strict proportionality test.67 To sum-up there are different views among international courts and human rights bodies about how IHL and IHRL should interrelate in armed con64 65 66 67

“Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person.” See e.g. IACHR, Third report on the human rights situation in Colombia, OEA/Ser.L/V/ II.102 Doc. 9 rev. 1, February 26, 1999, Chapter IV. UN Human Rights Office of the High Commissioner, International Legal Protection of Human Rights in Armed Conflict, New York and Geneva, 2011, p. 67. See e.g. ECtHR, Özkan v. Turkey, April 6, 2004, para. 305-306.

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flicts. However, it can reasonably be argued that the many precise and detailed rules on targeting in IHL are lex specialis to the right to life standards in IHRL when armed drones are used in the context of an international armed conflict and occupation. On the contrary, when armed drones are used in the context of a non-international armed conflict on the targeting State’s own territory IHRL will arguably be the basic regulation to some extent informed by targeting standards in IHL depending on the specific circumstances and the control over the area where the targeting is carried out. The Extraterritorial Use of Armed Drones outside Areas of Active Hostilities – Transnational Non-international Armed Conflict But the question remains how standards in IHL and IHRL should interrelate when armed drones are used in other States outside areas of active hostilities against a person who is linked to an ongoing, non-international armed conflict in a third country. To illustrate, a State A might be involved in a transnational non-international armed conflict with an armed group in State C. Members or supporters of the armed group in State C might have travelled to, escaped to or for other reasons be present in State B where they are hiding and (assist in) preparing attacks on State A’s military personnel in the armed conflict in State C. This is the situation when the US is targeting individuals in Pakistan, Yemen and Somalia outside areas of active hostilities with armed drones because they directly support ATA in Afghanistan in their ongoing, transnational non-international armed conflict with the US in Afghanistan. It is, as described earlier, the US position that drone attacks in other States outside areas of active hostilities e.g. in Pakistan, Somalia and Yemen, nevertheless are carried out within the context of a transnational non-international armed conflict with the consequence that targeting standards in IHL are applicable and take precedence over the right to life in IHRL. It is unsettled in international law and a strongly contested question whether a fighter “can bring the armed conflict with him” from State C to State B and whether a targeted killing carried out in State B is regulated by IHL. Hence, it is questionable whether State A can target an enemy fighter in State B with reference to targeting standards in IHL. Furthermore, the targeting State will arguably be bound by right to life standards in IHRL. Even if it is accepted that target standards in IHL are applicable to this situation it must be borne in mind that the situation in State B presumably is a “normal” peacetime situation regulated by IHRL and normal law enforcement standards of State B. In this situation it can less convincingly be argued

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that State A’s right to life obligations in IHRL (if applicable extra-territorially) should be informed – and watered-down by – by targeting standards in IHL. Furthermore, in this situation the territorial State B is presumably not involved in the non-international armed conflict between the targeting State A and armed groups in State C. Consequently, State B’s right to life obligations under IHRL are not affected or watered-down by standards in IHL and State B cannot accept or give its consent to killing of individuals on its territory in violation of IHRL, see in more detail the sub-section on the territorial state’s positive human rights obligations to protect life.

Concluding Observations: Are There Diffferent Views on Legality in the US and Europe? When considering the legality of a specific targeted killing with armed drones it is necessary to establish whether the attack is regulated by IHL, or by IHRL or by both bodies of law. IHRL provides both from a substantial and procedural point of view a much stronger and more effective protection of the right to life than IHL. It is still not settled in the case-law of international human rights bodies whether extraterritorial targeted killing with armed drones is regulated by IHRL. However, it is possible to identify four different ways IHRL can apply to and influence extraterritorial drone attacks. If armed drones are used in the context of an international armed conflict or occupation the detailed and precise targeting standards in IHL take precedence over right to life standards in IHRL (IHL is lex specialis). If armed drones are used in the context of a non-international armed conflict the right to life under IHRL will arguably be the basic regulation possibly to some extent informed – and watered-down – by targeting standards in IHL. If a drone attack is carried out in peacetime situations – outside the geographical scope of the armed conflict – IHL can hardly be relevant and the right to life in IHRL must in any circumstance be the prevailing standard (IHRL is lex specialis). It is, as described, the US position that targeted killings with armed drones outside areas of active hostilities in e.g. Pakistan, Yemen and Somalia can be justified according to targeting standards in IHL. IHRL is not perceived by the US to be applicable to extraterritorial drone operations and furthermore it is the US position that targeting standards in IHL in any event will take precedence over right to life standards in IHRL as lex specialis in times of armed conflict. It has been shown in this chapter that the US legal justification for targeted individuals with armed drones outside areas of active hostilities in e.g. Paki-

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stan, Yemen and Somalia hardly is in compliance with IHRL. First, the broad interpretation of “imminence” and “least harmful means” advanced by the US is not in compliance with the more narrow interpretation in IHRL (the necessity requirement). Second, while it is debatable whether IHRL conventions are applicable to extraterritorial drone operations due to the “within jurisdiction” requirement, there are other ways IHRL can regulate extraterritorial drones operations carried out by the US and other States i.e. through the extraterritorial effect of international human rights conventions; through customary international law; and finally through the international human rights obligations of the “territorial state” i.e. the State where the individual is targeted. Third, the US position that IHRL in general is superseded by IHL in times of armed conflict is not in line with practice from international human rights monitoring bodies. It is difficult to assess whether there are different views in the US and Europe on the legality of using armed drones outside areas of active hostilities. There is no consensus among European States and furthermore European States have – like the US – generally been reluctant to provide official and public information on whether they believe the use of armed drones outside areas of active hostilities is in compliance with international law. On the contrary, most European States do accept that IHRL might be applicable when States are acting extra-territorially at least when they are exercising effective control over area or individual. It also seems to be accepted by most European States that IHRL continues to be applicable in times of armed conflict and that standards in IHRL will not be completely ruled out by IHL. The European Court of Human Rights has evidently also played an important role in strengthening the application of IHRL when European states are acting extraterritorially in situations of armed conflict, most recently in 2011 in the Al-Skeini and the Al-Jedda cases.68 Against this background it could be expected that European States would be skeptical towards the use of armed drones outside areas of active hostilities. There is an ongoing dialogue between the European Union and the US on the use of armed drones.69 However, it appears that only few European States have been willing to publicly discuss and possibly criticize the American use of armed drones outside areas of active hostilities. 68 69

ECtHR, Al-Skeini and other..., July 7, 2011; and Al-Jedda ..., July 7, 2011, Both are Grand Chamber judgments. See the Danish Ministry of Foreign Affairs answer to a question from the Foreign Committee in the Danish Parliament on the use of drones, Spørgsmål nr. 155 fra Det Udenrigspolitiske Nævn, May 28, 2013.

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In Germany the new coalition between the new Conservative and the Social Democrat government reportedly agreed in November 2013 that: We categorically reject illegal killings by drones. Germany will support the use of unmanned weapons systems for the purposes of international disarmament and arms control… Before acquiring a qualitatively new arms system, we will thoroughly investigate all associated civil and constitutional guidelines and ethical questions.70 Norway has also questioned whether armed drones are in compliance with international law: Armed drones have been used in armed conflicts, but also in other situations, e.g. in attacks on terror networks. Such use of drones – outside the scope of armed conflicts – raises a number of difficult questions in relation to international law.71 In any event it can safely be concluded that there is no international consensus on armed drones and international law, and consequently there is a strong need for establishing clear international consensus and guidance on the use of armed drones outside areas of active hostilities as also recommended in, i.a., the 2013 report from the European Parliament.72

Literature and references Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990. Boothby, William, “Some legal challenges posed by remote attacks,” International Review of the Red Cross, March 2013, p. 1-17.

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See the Spiegel, November 14, 2013. http://www.thelocal.de/20131114/germany-suspends-buying-of-drones See press statement from the Norwegian Foreign and Defense Ministers, November 2012. The Danish Minister of Foreign Affairs has also in rather ambiguous terms criticized the American use of drones and warned against a “maximalist interpretation of international law in relation to armed drones”, see note 69. Melzer, 2013.

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Brooke-Holland, Louisa, Unmanned Aerial Vehicles (drones): an introduction, UK House of Commons, December 5, 2012. Brust, Richard, “Uneasy Targets,” ABA Journal, 2012, vol. 98, p. 50-55. Casey-Maslen, Stuart, “Drone strikes under jus ad bellum, jus in bello, and international human rights law,” International Review of the Red Cross, Vol. 94, No. 886, Summer 2012, p. 1-29. Chiesa, Luis E. and Alexander K. A. Greenawalt, “Beyond War: Bin Laden, Escobar, and the Justification of Targeted Killing,” Washington & Lee Law Review, Vol. 69, 2012, p. 1371-1470. Conte, Alex, “Human Rights Beyond Borders: A New Era in Human Rights Accountability for Transnational Counter-Terrorism Operations?,” J Conflict Security Law, published 3 May 2013. Corn, Geoffrey S., “Geography of Armed Conflict: Why it is a Mistake to Fish for the Red Herring,” 89 INT’L L. STUD. 77 (2013). Code of Conduct for Law Enforcement Officials, Adopted by the UN General Assembly Resolution 34/169, December 17, 1979. Dehn, John C.,” Targeted Killing, Human Rights and Ungoverned Spaces: Considering Territorial State Human Rights Obligations,” Harvard International Law Journal, Vol. 54, December 2012. Dreyfuss, Mike, “My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad,” Vanderbilt Law Review, Vol. 65, 2012, p. 249-292. Epstein, M., “The Curious Case of Anwar al-Aulaqi: Is Targeting a Terrorist for Execution by Drone Strikes a Due Process Violation when the Terrorist is a United States Citizen?,” Journal of International Law and Practice, 2011, p. 723-744. Heller, Kevin Jon, “One Hell of a Killing Machine, Signature Strikes and International Law,” Journal of International Criminal Justice, 11 (2013), p. 89-119. Kretzmer, David, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?” The European Journal of International Law, Vol. 16, No. 2, 2005. Lewis, Michael W., “Drones and the Boundaries of the Battlefield,” Texas International Law Journal, Vol. 47, 2012, p. 293-314. Lubell, Noam and Nathan Derejko, “A global Battlefield?,” Journal of International Criminal Justice, Vol. 11, 2013, p. 65-88. Lubell, Noam, Extraterritorial use of Force against Non-State Actors, Oxford University Press, Oxford 2010. Margalit, Alon, “Did LOAC Take the Lead? Reassessing Israel’s Targeted Killing of Salah Shehadeh and the Subsequent Calls for Criminal Accountability,” Journal of conflict and security law, 17 (1) 2012, p. 147-173.

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McDonnell, Thomas Michael, “Sow what you reap? Using predator and reaper drones to carry out assassinations of targeted killings of suspected Islamic terrorists,” George Washington International Law Review, Vol. 44, 2012, p. 243-316. May, Larry, “Targeted Killings and Proportionality in Law,” Journal of International Criminal Justice, Vol. 11, 2012, p. 47-63. Milanović, Maro, “A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law,” Journal of conflict and security law, 14 (3) 2009, p. 459-483. NcNab, Molly and Megan Matthews, “Clarifying the Law Relating to unmanned Drones and the Use of Force: the Relationships Between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law,” Denver Journal of International law and policy, Vol. 39, No. 4, 2012, p. 661-694. O’Connell, Mary Ellen, “Unlawful Killing with Combat Drones,” Notre Dame Law School, Legal Studies Research Paper, No. 09-43, July 2010. Ohlin, Jens Davis, “Is Jus in Bello in Crisis?,” Journal of International Criminal Justice, Vol. 11, 2013, p. 27-45. Ramsden, Michael, “Targeted Killings and International Human Rights Law: The case of Anwar Al-Awlaki,” Journal of conflict and security law, 16 (2) 2011, p- 385406. Sassòli, Marco and Laura M. Olson, “The relationship between international humanitarian law and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflict,” International Review of the Red Cross, vol. 90, No. 871 (September 2008), p. 613–615. Scharffner, Diana E., “The legality of using drones to unilaterally monitor atrocity crimes,” Fordham International Law Journal, Vol. 35, 2012, p. 1121-1163. Special Rapporteur on extrajudicial, summary and arbitrary executions, Report, Philip Alston, A/HRC14/24/Add. 6 , May 28, 2010; Report, Christof Heyns, A/766/330, August 30, 2011,; and Report, Christof Heyns, A/HRC/20/22/Add. 3, March 30, 2012. United Nations Human Rights Office of the High Commissioner, International legal protection of human rights in armed conflict, New York and Geneva, 2011. University Centre for International Humanitarian Law, Expert Meeting on the right to life in armed conflict and situations of occupation, Geneva, September 1-2, 2005. Wong, M.S., “Targeted killings in the international legal framework: with particular reference to the U.S. operation against Osama Bin Laden,” Chinese Journal of International Law, 11, 2012, p. 127-163. Wuschka, Sebastian, “The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?,” Goettingen Journal of International Law, Vol. 3, 2011, p. 891-905.

chapter 14

Losing the Right to Have Rights: EU Externalization of Border Control Martin Lemberg-Pedersen

Introduction In March 2011, 72 men, women and small children from Eritrea, Ethiopia, Sudan and Nigeria escaped the violence-ridden Libyan capital of Tripoli as they boarded a small boat set to carry them to the Italian island of Lampedusa. Quickly, though, the boat’s fuel tanks ran dry and they began to drift aimlessly around on the vast Mediterranean Sea. Survivors later told of how an Italian helicopter marked “army” had dropped water and cookies onto the boat and then left again. Several days later, two helicopters from a nearby French warship also flew over the boat, and even though the passengers held up two small babies to the sky in order to show their desperate plight, these pilots also turned away. Despite the Ghanian captain’s repeated satellite phone calls for help, no help emerged from a Mediterranean Sea filled with NATO warships helping to oust the Libyan dictator Gaddafi. As one day followed the other, the passengers of the boat began to starve to death. An Ethiopian survivor told how “Every morning we would wake up and find more bodies, which we would leave for 24 hours and then throw away.” As the parents of the two small babies died, the survivors saved a bottle of water to keep the babies alive, but to no avail. They also passed away two days later. When the boat finally, after 16 days, washed back up on the shores of Libya, 61 of its 72 passengers had died.1 This tragic case is not unique. More than a thousand people drowned in the Mediterranean following the North African spring and, according to the NGO United Against Racism, 15,551 people have died since 1993 in the attempt

1

V. Walt, “Did NATO Leave 62 Africans to Die at Sea Off Libya?” Time World, May 9, 2011. (http://www.time.com/time/world/article/0,8599,2070509,00.html).

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to reach European territory (United Against Racism website).2 The hazardous conditions facing migrants in the Euro-African borderlands illustrate the contested nature of immigration and border control, and how border control posits a moral and political dilemma between states’ rights to sovereign discretion over their borders on the one hand and migrants’ right to seek and be granted protection in states’ other than their own. Globally speaking, this tension has grown since the end of the cold war and has created several geopolitical hot spots, such as the US-Mexican border, the Mediterranean Sea and the Maghreb at the EU’s southern borderlands. In this chapter I examine the state of migrants’ rights in the Euro-African borderlands. The chapter is structured in the following manner: First I problematize a conventional and widespread view on border control by way of critical geography and the conceptual framework of borderscapes. Then I develop this framework by discussing the EU’s cooperation with third countries on border control as externalization and notes an often-stated EU justification for this policy. At this point I then illustrate how the borderscape model is capable of appraising a number of central and worrisome developments and restructuring processes, which have taken place in the management of the EU borders. Thus, I trace and discuss the European policy drive to export migrant detention camps to North Africa in the period up to the rebellions, which toppled Maghreb rulers like Gaddafi, Ben Ali and Mubarrak. Thereafter, I complement these findings with attention to the creation and major operations of the Frontex Agency, and, finally, how the use of deportations has been systematized and the dynamics of the EUROSUR system. At the end I conclude that analyses of these reconfigurations of the EU borderscapes’ control infrastructure show how the union’s border control is multi-local, relational and does not create protection elsewhere for vulner2

United Against Racism reports that while 2000 people had died up until mid-2001, that number increased to 3026 by 2002, to 3750 by 2003, 4500 by 2004, 6300 by 2005, 7182 by 2006, 8800 by 2007, 11,105 by 2008 and 13,250 by 2009, 13,621 by 2010 and 15,551 by mid2011. Analyzing the numbers between 2001 and 2009 two significant trends stand out: While 4500 people died trying to reach European territory from 1993 to 2004, the number reached 11,051 fatalities between 2005 to 2011. Moreover, while the average annual rate of migrant fatalities from 2001 to 2004 was 833, it rose to 1688 in the years from 2008 to 2011. These numbers, moreover, are almost certainly too low as EU Member States are reluctant to undertake any systematic registration of fatalities connected with their border control and because of the massive difficulties of media sources in gathering information on fatalities among European-bound migrants, which occur long before these get close to European territory. (United Against Racism website. Available at: http://www. unitedagainstracism.org/pages/underframeFatalRealitiesFortressEurope.htm).

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able migrants. Rather, I claim, the European border control has systematized violations elsewhere and thus undermine both European and African states’ willingness to protect the rights of migrants.

Exported Borderscapes? The Decoupling of Border Control from European Territories While border control has gained unprecedented attention in European public and political debates over the last 20 years, these debates have most often reverted to a closed system perspective, which understands borders as the territorial property of individual nation-states. According to such a perspective, states are somehow already in existence, replete with a fixed territory demarcated by borders. These borders protect communal rights and duties and a cultural identity. This dominant understanding of borders relies heavily on a set of idealized realist geopolitical assumptions and has generated the epistemic dogma that states are simply territorial containers of society and sovereign power and the guarantors of people’s human rights. As such, the assumptions behind this common view on borders reify the perspective of states and represent a tendency for closed system thinking that omits the multifaceted and contested dynamics of transnational sites and phenomena, such as border control and migration. Consequently, this closed system perspective falls into the “territorial trap” of methodological nationalism and is uniquely ill equipped for analyzing a range of transnational dynamics in today’s globalized world.3 The closed system dogma with its state centric conception of borders is partly explainable by the resurgence of nationalistic political imagination in Europe during the last 20 years, but it faces several problems. For one thing, such a perspective views people moving across borders as exceptions from a normal and established order of things. It thus effectively transforms migrants into misplaced existences. Moreover, the perspective reifies controversial border enforcement practices like detention camps, mass deportations or regimes of surveillance, and fails to question their impact on migrants’ fundamental rights. To counter this tendency, I follow work in the fields of critical geopolitics and border studies, which in recent years have sought to 3

J. Agnew, “The territorial trap: the geographical assumptions of international relations theory”. Review of International Political Economy, 1(1) 1994, p. 51-80; A. Wimmer and N. Glick Schiller, “Methodological nationalism and beyond: nation-state building, migration and the social sciences.” Global Networks, 2(4) 2002, p. 301-334.

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deconstruct the dominant European political imagination concerning the limits of states and their conduct of border control.4 A more promising conceptual framework for understanding the EU’s border control is that of borderscapes. The borderscapes framework seeks to identify the dynamic and relational processes underpinning European border politics. In general, borderscapes can be seen as multifaceted sociogeographic landscapes of power, which produce structures and cover over “hidden geographies” of excluded and marginalized groups.5 While this definition of borderscapes is very broad, it fixes our attention to the fact that borders are highly complex sites constituted through multiple interventions from multiple actors. It highlights how the European borderscapes’ produce dominant geographies, and cover over other, more marginalized existences, guided by the continuous construction and reconstruction of multidimensional abstractions of knowledge, power and technologies.6 Paying attention to the supranational processes of borders is crucial for understanding the development of the European border control. Thus, the EU’s administrative and political institutions describe the union’s transnational border control in terms of “external action” of the EU’s Home Affairs policies. In the union’s Global Approach to Migration (2005), the union define these policies in the following manner: Migration cannot be managed by the EU alone. Finding ways to address the challenges and make the most of the benefits brought by migration requires dialogue and partnerships with non-EU countries. The Global Approach to migration is, since 2005, the EU’s framework for dialogue and cooperation with non-EU countries of origin, transit and destination. It enables migration and asylum issues to be addressed in a comprehensive way (Global Approach to Migration website). The EU’s discourses seem to oscillate between two framings of the pre-emptive rationale behind its transnational border control. Thus, the Danish EU Presidency of 2012 framed EU external action on border control as “contribut4

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G. O Thuathail, Critical Geopolitics. Routledge, London 1996; H. van Houtum and T. van Naerssen, “Bordering, Ordering and Othering.” Tijdschrift voor Economische en Sociale Geografie, 93(2) 2002, p. 125-136; N. Vaughan-Williams, Border Politics: The Limits of Sovereign Power. Edinburgh University Press, Edinburgh 2009. K. Rajararam Prem and C. Grundy-Warr (eds.), Borderscapes: Hidden Geographies and Politics at Territory’s Edge. University of Minnesota Press, Minneapolis, Minnesota 2007, p. x. Rajararam and Grundy-Warr, 2007, p. xxv-xxvi.

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ing to better the fundamental rights of irregular migrants and those in need of international protection.“ At the same time, however, the Danish Presidency also reverts to an analogy likening migrants with water flows, saying that “Working upstream in countries of origin and transit,” can “help stem the flow of illegal migration and secondary movement to the EU.”7 While these framings can be seen as complementary, they also highlight a tension between the perceived need to counter migration and the rights of migrants. Recognizing vulnerable individuals with urgent and legitimate protection needs obviously becomes more difficult when border policies are motivated by interests in “stemming the flow” of migrants, the conditions and needs of which are not differentiated from each other. Academic scholars have, during the 2000s, responded to this political development by discussing extraterritorial European border control through the concept of externalization. Thomas Gammeltoft-Hansen, for instance, defines “extraterritorial migration control” as a general trend in many states “to extend the reach of migration control to destinations outside its territory and to employ agents other than the state’s own authorities.”8 Corresponding to the dual framing produced by the EU, Christina Boswell distinguishes between preventive externalization that purports to address the root causes behind refugee flows, and the export of classical migration control to other countries.9 According to Sandra Lavenex and Emek Ucarer, the integration of EU Member States’ immigration policies has resulted in several modes whereby the European priorities are transferred to non-European host countries. These modes are then determined by whether the third country functions as receiving, transit or sending country for European-bound asylum seekers.10 Even if the European priorities run counter to those of the third countries, political and economic EU pressure often have the effect that the countries choose to follow them anyway.11 Complementing these conceptualizations of externalization, Thierry Balzacq has proposed to view externalization as a 7 8 9 10 11

Justitsministeriet. 2012. Discussion paper: Informal Justice and Home Affairs Ministers’ Meeting. Copenhagen 26-27 January 2012. T. Gammeltoft-Hansen, Access to Asylum. Cambridge University Press, Cambridge 2011, p. 2. C. Boswell, The “external dimension” of EU immigration and asylum policy. International Affairs, 79(3) 2003, p. 613. S. Lavenex and E. Ucarer, “The External Dimension of Europeanization: The Case of Immigration Policies.” Cooperation and Conflict, 39(4) 2004, p. 435. Lavenex and Ucarer, 2004, p. 420-421; A. Betts and J. Milner, The Externalisation of EU Asylum Policy: The Position of African States, DIIS Brief, December 2007, Copenhagen 2007, p. 1-2.

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continuum of instances where an actor, here the EU, through international negotiations may gain “remote control” over the border control of other actors, here third countries, which, in turn can lead to the extraterritorial conduct of migration and border control.12 Taking these discussions into consideration, I shall understand externalization to denote processes whereby European nation-states, intergovernmental or supranational actors complement their policies on migration control across their territorial boundaries with initiatives, which realize this control beyond their territories. Externalization therefore amounts to an extraterritorial and pre-emptive control of migration, where some actors export this control while others agree, more or less willingly, to host it. In so far that talking about externalization accurately reflects how European border control has evolved in recent years it has several important implications for our understanding of borders and their consequences. We can say that the European border governance has developed according to internal and external dynamics, both of which makes state-centric perspectives problematic: Along the implementation of the free internal mobility of European citizens within the Schengen space, the external European borders have increasingly been decoupled from the actual territorial boundaries of European nation-states and are now enforced globally.13 One way to assess the impact of European border control on the rights of migrants is to analyze the European borderscapes in terms of three interdependent axes, namely those of politics, material infrastructure and the humanitarian consequences for migrants. In the following sections I explain the relation between these axes of the European borderscapes by analyzing four central developments of the current EU border system. These components are: the externalization of migrant detention camps, the operations of Fron12

13

T. Balzacq, “Frontiers of Governance: Understanding the External Dimension of EU Justice and Home Affairs”, in Thierry Balzacq (ed.), The External Dimension of EU Justice and Home Affairs: Governance, Neighbours, Security. Palgrave Macmillan, Hampshire 2009, p. 2-3. Of course, this presents a somewhat idealized picture of the internal mobility within the EU. Recently, several Member States, like Denmark, France, Germany and Netherlands have sought to impose some forms of border control between European states, and more generally the Schengen Border Code also allows Member States to impose temporary controls during, for instance, major sporting events. Moreover, precedents for this border governance, such as the US interceptions of Haitian boatrefugees during the 1990s and the Australian so-called Pacific Solution, indicate that the decoupling of migration control from territorial border is not a purely European phenomenon, but a global tendency.

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tex, the systematization of deportation practices and the creation of the EUROSUR “early warning system”. Together, these components show how the EU borderscapes are multi-local, relational and how they both create and cover over deeply worrying humanitarian consequences for migrants.

Protection Anywhere? Tracing EU’s Externalization of Detention Camps As mentioned, EU policy documents portray externalization as engaging transit countries and regions of origin in cooperative schemes on development aid, protection, asylum, border control and the root causes of migration. More specifically, the EU have pointed to its Regional Protection Programmes (RPPs), launched in 2004, as an example of how externalization secures the rights of migrants. The Commission has, for instance, portrayed the RPPs as enhancing the protection capacity of the regions involved and as offering repatriation, resettlement, work schemes and local integration to local refugee population.14 Small RPP pilots have been funded in Ukraine, Belarus, Moldova and Tanzania via the Aeneas and Tacis Programmes, and in 2010 it announced plans to allocate €3.4 million to develop an RPP pilot in North Africa.15 By opening up other destinations to which people can migrate the Commission can be seen as claiming that the RPP approach ensures “protection elsewhere”. Protection elsewhere policies are premised on the idea that European states do not have a duty to offer protection to migrants, but that they can facilitate that migrants receive protection in other countries.16 If we understand protection to denote the respect for individual’s rights, we can therefore view the Commission as claiming that protection elsewhere policies in the form of Regional Protection Programmes discharge the EU’s commitment 14

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Commission of the European Communities. Communication from the Commission to the Council and the European Parliament: On Regional Protection Programmes. 1.9.2005, Brussels. COM(2005) 388 final. 2005b, p. 1. Council of the European Union. Commission Staff Working Document: on the fulfillment of the 29 measures for reinforcing the protection of the external borders and combatting illegal immigration adopted at the Justice and Home Affairs Council meeting, held on Brussels on 25 and 26 February 2010. 29.11.2010, SEC(2010) 1480 final. 2010, p. 5. S. Taylor, “Protection Elsewhere/Nowhere”, International Journal of Refugee Law, 18(2) 2006, p. 283. See also UNHCR. “The Concept of ‘Protection Elsewhere’.” International Journal of Refugee Law, ( 7) 1995 and A. Hurwitz, The collective responsibility of states to protect refugees. Oxford University Press, Oxford 2009, p. 127-138.

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to protect rights extraterritorially. This illustrates how the relational character of the EU borderscapes can be invoked to justify certain control policies: Even if externalized control restricts migrants’ right to free movement, the claim goes, it also secures their rights proactively, since third countries are integrated into the EU borderscapes and their humanitarian standards. Here, however, we should note that the ideas of RPPs and protection elsewhere are not as innovative as is claimed, but that they have a very controversial history within the European borderscapes. Tracing the externalization of migrant detention camps allow us to appraise how discourses on rights protection have, in fact, facilitated the rise of the external control regime. The protection elsewhere approach to European border control can be traced back to the 1980s. Here, the Danish Schlüter government launched the idea of exporting camps to countries outside Europe. This happened in a 1986 draft proposal for the UN Third Committee where the Danes argued that it was necessary to mobilize “the collective political will of the international community to seek long-term and equitable solution” to the problem of refugees’ lacking protection.17 The countries had to be prepared to increase aid and share the “burden” of asylum seekers. Most importantly, though, it was argued that a string of UN-run “processing centers” should be created outside Europe.18 The Danish Proposal noted that such camps would offer protection for migrants on the one hand, but at the same time also allow European countries to administratively deport all asylum seekers on European territory to processing procedures in such camps. It would also be beneficial for the deportees, it was argued, because the camps would have “similar environment and people” to the migrants. The UN Third Committee deferred to decide on the Danish Proposal, citing that the venue used by the Danes was not the proper one for such a wide-ranging proposal. Nonetheless, the ideas voiced in it were to remain within the political imagination of Europe, and would resurface again several times during the following 20 years.19 When Denmark assumed the EU presidency in 2002, the idea experienced a veritable renaissance as the Fogh government, strongly backed by the nationalist-populist Danish Peoples Party, revived the idea. To this end the Danish 17

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“Danish Proposal.” UN Third Committee. Summary Record 39th meeting. UN General Assembly forty-first session, held on Friday, November 7th 1986. Distr. General A/C.3/41/SR.39. 1986. “Danish proposal”, 1986, p. 8. G. Noll, “Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centers and Protection Zones”. European Journal of Migration and Law. 5, 2003: 311-312.

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Presidency called EU cooperation with Libya on the control of irregular migration as “not only desirable but essential.”20 In June that same year, the EU Seville Presidency Conclusions also formulated the migration development nexus, which was to become a cornerstone in EU-third country relations: The European Council considers it necessary to carry out a systematic assessment of relations with third countries which do not cooperate in combatting illegal immigration. That assessment will be taken into account in relations between the European Union and its Member States and the countries concerned, in all relevant areas. Insufficient cooperation by a country could hamper the establishment of closer relations between that country and the Union.21 With its Dutch and British counterparts, the Danish government formed an influential Northwestern Triade and lobbied hard to make the externalization of camps official EU policy. When the United Kingdom’s Blair government at the height of its power published its “New Vision for Refugees,” it was clearly aligned with its Danish predecessor.22 Thus, the UK New Vision envisioned externalized UN-run camps in Eastern Europe and North Africa, now labeled “Regional Protection Areas” (RPAs). The core idea remained that such EU-funded camps should replace asylum processing on European territory, and thereby facilitate the administrative deportation of asylum seekers from Europe, perceived as a burden for the asylum systems. However, the UK New Vision departed from the explicitly humanitarian terminology found in the Danish proposal, and was much more clear in its focus on European security concerns. For instance, it explicitly stated that military intervention could be one of several solutions to prevent refugee flows from arriving in Europe.23 The UK New Vision was, however, also rejected as official EU policy at the Thessaloniki Council in 2003 due to severe humanitarian criticism. Several NGOs argued that such camps would not be able to offer a protection that lived up to the EU’s duties and that states could not outsource their territorial obligations to provide access to protection and asylum procedures.24 The UN20 21 22 23 24

Council of the European Union. 2463rd Council meeting. General Affairs and External Relations, 14183/02 (Presse 350), 18.11.2002. Brussels 2002a, p. 5-6. Council of the European Union. Seville European Council 21 and 22 June 2002: Precidency Conclusions, OR 13463/02, POLGEN 52. 29.12.2002. 2002b, p. 11. “UK New Vision.” New Vision for Refugees. UK Government 2003. “UK New Vision,” 2003, p. 26. Amnesty International. UK/EU/UNHCR: Unlawful and Unworkable, AI Index: 61/004/2003.

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HCR instead proposed a much-criticized “counter-proposal”: a three-pronged model including region-based solutions, improved asylum procedures and the processing of asylum claims in EU reception camps on European territory.25 The Danish, Dutch and Spanish governments, however, rejected the UNHCR proposal favoring instead the UK New Vision and was joined by the German Schröder-government, which argued that the UNHCR camps were unfeasible, since they would increase the amount of asylum claims to Europe.26 The Northwestern Triade’s discourse on externalized camps, with its focus on regionalized protection, extraterritorial asylum processing and burden sharing illustrate how the discourses surrounding the externalization of camps do not accord to a clear cut case of securitization. Still, the core of the idea was extremely controversial. Thus, passages in the UK New Vision indicates that the Triade was so determined to reduce the amount of asylum seekers to Europe, that they were willing to compromise their responsibility towards migrants. For instance, in its New Vision paper, the UK government contemplated a withdrawal from the ECHR’s Article 3 and the Refugee Convention’s article 33.1 saying: “If we only had to concern ourselves with torture, inhuman and degrading treatment that happens in the UK, we could remove anyone off the territory without obligation. Coupled with a withdrawal from the Geneva Convention refoulement should be possible and the notion of an asylum seeker in the UK should die.”27 This remarkable statement explicates the unstated implications of the earlier Danish proposal on externalization, and illustrates how the Northwestern Triade seemed more interested in minimizing asylum claims in their territories than in minimizing inhumane and degrading treatment and the persecution of deported migrants. The vision of externalization launched by the Northwestern Triade’s is not only illustrative because it explicates the humanitarian and legal implications of externalization policies. It would also serve as a crucial stepping-stone for the evolution of the EU’s policy on externalized camps. Thus, although the UK New Vision was rejected, the EU’s official policy began to change around this time. During a July 2004 Council meeting the German minister of the interior, Otto Schily, began to lobby for a German version of externalization. Its components were eventually formulated in a September 2005 document called “Effective Protection for Refugees, Effective Combat

25 26 27

UNHCR. “UNHCR’s Three-Pronged Proposal”. UNHCR Working Paper, 2003. See also Noll, 2003, p. 306. “UK New Vision”, 2003, p. 9.

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against Illegal Migration.”28 This proposal gained the support of Schily’s Italian counterpart, Guiseppe Pisanu, and the Italian Justice and Home Affairs Commissioner, Rocco Buttiglione, and eventually also from the Northwestern Triade. The Schily Proposal aligned itself with the Northwestern Triade’s ideas of externalized camps, now labeled “EU reception centers”, operated by the UNHCR, singling out Morocco, Tunisia and especially Libya as host countries for such camps despite the well-known fact that Libya refused to sign the Refugee Convention.29 Moreover, the Germans focused more on the need for systematizing EU deportations stating that not only spontaneous asylum seekers on European territory, but also boat-migrants intercepted in international waters, could be administratively deported to the North African camps.30 According to the Germans, the principle of non-refoulement would not apply when European states intercept and deport boat-migrants in the extraterritorial space of international waters,31 even though scholars argued that this misrepresented more than a decade of international legal debate on non-refoulement.32 In 2012 this legal opinion would be backed up by the verdict of the European Court of Human Rights in the case of Hirsi and others v Italy. In 2005, however, proponents of the Schily Proposal were unphased by the uproar among legal scholars. They considered the problem solved through the vague formulation that states hosting the camps ought “principally” to be signatories to the Refugee Convention – or at least act in accordance with it.33 Notably, the Schily Proposal also rejected the Northwestern Triade’s idea of extraterritorial asylum processing in the camps, instead limiting their function to conducting pre-screening programmes and offering temporary working permits.34 As such, the Schily Proposal continued and reinforced the 28

29 30 31 32

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“Schily Proposal.” Bundesministerium des Innern: Effektiver Schutz für Flüchtlinge, wirkungsvölle Bekämpfung illegaler Migration – ûberlegungen des Bundesministers des Innern zur Errichtung einer EU-Aufnahmeeinrichtung in Nordafrika, Pressemitteilung. Bundesministerium des Innern 2005. “Schily Proposal,” 2005, p. 3, 5 and 6. “Schily Proposal,” 2005, p. 1. “Schily Proposal,” 2005, p. 3. A. Fischer-Lescano and T. Löhr, Border Controls at Sea: Requirements under International Human Rights and Refugee Law. European Center for Constitutional and Human Rights. 2007, p. 5. Fischer-Lecano and Löhr, 2007, p. 4. Fischer-Lecano and Löhr, 2007, p. 4; see also Betts, A. The creation of transit centers outside the European Union. Memorandum, Committee on Migration, Refugees and Demography. AS/Mig 06. 2006, p. 4.

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strengthened focus on internal European security of the New Vision. As such, the Schily Proposal represents a significant transformation of the idea of protection elsewhere through externalized camps. An idea, which had originally been presented in the language of humanitarian protection in regions of origin, seemed to be turning into an administrative deportation and detention regime in breach of international law. The common-European discussions between the JHA Council and the Commission, evolved similarly in the following years and it was at this point that the Commission, in a June 2004 Communication, first introduced the idea of creating Regional Protection Programmes in cooperation with the UNHCR.35 The RPPs, it was said, were to ensure “orderly entry” and assist transit countries in becoming the countries where migrants received first protection and filed asylum claims.36 Testifying to the German influence in the EU, the Communication dropped the idea that they could offer migrants direct access to claiming asylum in European countries through protected entry procedures because, as the Commission stated, the EU Member States did not have the “common perspective and confidence” to realize such a policy. In emergency cases the entry of persons with immediate protection needs could be “procedurally facilitated” though “at the full discretion of individual Member States” and only after initial pre-screening outside European territory, which was seen as desirable from a security perspective.37 Furthermore, to facilitate this transformed protection elsewhere policy, the Commission decided to send a Technical Mission to Libya in order to assess the country’s potential as a host country for regional protection in the form of externalized camps. In Libya, the Commission’s Technical Mission found that Italy had been funding large detention facilities in Kufra, Sebha and Ghat for years, that they were operating deportation flights and, alongside Malta, had supplied equipment to the Libyan authorities, including 1,000 bodybags.38 The Commission’s Mission Report claimed that the Libyan detention conditions were “difficult but relatively acceptable” given the large influx of migrants and the under-

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Commission of the European Communities. On the Managed Entry in the EU of Persons in Need of International Protection and the Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions. 4.6.2004, Brussels. COM(2004) 410 final. 2004, p. 17-18. Commission ..., 2004, p. 20. Commission ..., 2004, p. 7 and 12. Commission of the European Communities. Technical Mission to Libya on Illegal Migration, November 27 –December 6, 2004 Report, No. 7753/05. Brussels 2005a, p. 59-60.

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equipped, undermanned and poorly trained Libyan border police.39 The Commission noted approvingly of the Libyan plans to increase the number of border control officers from 3,500 to 42,000 and urged the union to increase its financial support to Libya.40 The Council reacted to the Mission Report with the cryptic and open formulation that “any cooperation with Libya can only be limited in scope and take place on a technical ad hoc basis.”41 While seemingly cautious, this formulation actually opened up for comprehensive “ad hoc” cooperation on control between Libya and European actors. In line with the Mission Report, the Aeneas Programme, which distributed financial aid to third countries in the area of migration management, was put to use in Libya, to which Schily commented that the vision of externalization contained in his Proposal had “now become concrete policy.”42 Alongside the supranational EU drive to engage with Libya bilateral agreements between Libya and Italy in 2004 and 2008 were also crucial. Included in the 2008 agreement was an alleged EU promise to fund 50 pct. of a C3 border control system, which was to be constructed by the Italian military company Finmeccanica along Libya’s southwestern borders with Niger and Chad.43 In 2007, a second EU Technical Mission led by Frontex was sent to Libya, all but reiterating the union’s commitment to collaborate with the Gaddafi regime. And in October 2010, the Commission reported that the JHA Commissioner, Cecilia Malmström, and the Enlargement and Neighborhood Policy Commissioner, Stefan Füle, had held “constructive talks” with Libyan representatives in Tripoli concerning a list of possible initiatives. The Commissioners also agreed to pay Libya €60 million. These included developing the Libyan capacity to manage its borders, to organize migration flows, to fight smuggling and trafficking and to protect refugees according to international standards.44 As it turned out, however, the rebellion against Gaddafi commenced before the EU could transfer the promised funds. The externalization of the EU borderscapes, however, has vast consequences for migrants both within, and especially beyond European territory. 39 40 41 42 43

44

Commission ..., 2005a, p. 34. Commission ..., 2005a, p. 47. Council of the European Union. 2664th Council meeting. Justice and Home Affairs. Luxembourg. June 2-3, 2005, p. 18. Neue Zürcher Zeitung, “Zusammenarbeit mit Libyen gegen Einwanderung wird konkret,” June 3, 2005. “Italian Libyan Friendship Treaty.” Trattato di Amicizia, Partenariato e Cooperazione tra la Repubblica Italiana e la Grande Giamahiria Araba Libica Popolare Socialista. 2008, p. 8. Council …, 2010, p. 20-21.

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Humanitarian NGOs have throughout the 2000s produced a growing body of reports documenting how the EU’s favored partners in externalization commit massive violations against migrants. A migrant named Tigiste told Jesuit Refugee Service about her experiences in Libya: The guards often struck me; if they asked me something and I said no, they would immediately hit. My husband spent time in Twaisha too. He was so disoriented and unwell when he left this prison; it is very bad. My uncle is still in Twaisha. He was tortured with electric shocks and beaten by the guards. They thought he was dead so they threw his body in the garbage. He was there for two days then someone went and tapped him and he stirred. He was taken to hospital, treated for four days and returned to Twaisha.45 Tigiste’s account is frighteningly similar to those of other migrants being detained in Libya because of European control policies. Countless migrants tell of being savagely beaten, exposed to electric torture, sexual exploitation, or of being dumped in desert regions.46 Many tell that their terrible ordeal was caused by the Italian-Libyan push back practice, starting in 2009, where they were intercepted by the Italian coastguard and returned to Libyan military units. A common practice, which gained systemic proportions under Gaddafi was the trafficking of migrants through vast desert areas. In this fashion, tens of thousands of migrants, including women and children, were circulated for days, across the vast Libyan deserts, between official and smugglers’ detention facilities in trucks and containers, with little or no food, and being forced to urinate and defecate while standing.47 Maria-Teresa Gil-Bazo describes the resulting EU border system, as functioning according to a logic of internal European security, which requires the

45 46

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Jesuit Refugee Service Malta. Do They Know? Asylum seekers testify to life in Libya. Malta 2009, p. 11. Human Rights Watch. Nowhere to Turn: State abuses of unaccompanied migrant children by Spain and Morocco. 14(4)D. 2002; Human Rights Watch. Pushed Back, Pushed Around. 2009. Available at: http://www.hrw.org/en/reports/2009/09/21/pushed-backpushed-around-0, accessed October 2nd, 2009; Doctors Without Borders. Activity Report 2006. 2006; GADEM. The Human Rights of Sub-Saharan Migrants in Morocco. GADEM 2010. Human Rights Watch, 2009, p. 71.

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preemptive containment of migrants.48 According to her, the border system works to secure that Individuals do not leave their countries of origin (visa regimes, carrier sanctions); or if they manage to do so, that they remain as close as possible to their country/region of origin; or if they manage to reach the EU, that they may be removed to “safe third countries”; and, if all that fails, that only one Member State be responsible for any given asylum seeker, namely, the one that fails to control the external borders of the EU. Our tracing of the European policies on protection elsewhere through externalization thus shows how the EU’s 2004 launch of RPPs should not be seen as an innovative rupture in European protection policies. Rather it represented an under-prioritized offspring of a much stronger policy drive, namely to minimize asylum claims in Europe by exporting both the duty to protect migrants as well as the actual control outside the continent. This analysis also show how the external dimension of EU border control has deliberately integrated Libya into the union’s transnational border system and has relied on the “effectiveness” of bilateral control agreements between Libya and Italy. Although rights protection has continued to figure in the European discourses on externalization, the actual implementation of the control system has undermined the rights of migrants to a hitherto unseen extent. Despite these well-known consequences of the externalized European border control, the development has continued unabated. Although Gaddafi has now been removed from power, tales of abuse and degrading treatment of Sub Saharan migrants in Libya are surfacing from the country once more. To understand why the EU has not altered its course it is useful to sketch three other components of its border system and how they link to the union’s external control.

The Creation of Frontex, Mass Deportations and EUROSUR Alongside the cooperation with the Libyan Gaddafi regime, another material restructuring of the EU borderscapes occurred along the lines laid down in the Schily Proposal. In 2004, the EU’s Frontex Agency was created through 48

Gil-Bazo, M.-T. “The Practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Revisited.” International Journal of Refugee Law, Vol. 18, No. 3-4, 2006: 571-600.

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Council Regulation 2007/2004 and tasked with controlling Europe’s external borders in order to safeguard the free mobility of Schengen citizens. Since then, Frontex has implemented a vast amoung of operations, concerned with naval patrols, surveillance flights, deportations, training in airports and the reception and return of unaccompanied minors. Three operations illustrate the multi-local and relational functionality of the Agency and how it has expanded the EU’s maritime interception policies greatly. These are the Hera, Nautilus and Poseidon operations, which, together, have attempted to shut down migration routes in the West African, Central Mediterranean and Eastern European regions. Hera was the first official joint operation of Frontex and took place in 20062007. It comprised patrols in the territorial waters of Senegal, Mauritania and Cap Verde and prevented around 6,000 West African migrants from reaching the Canary Islands, where they could have applied for asylum. The equipment for Hera consisted of aircrafts, helicopters, vessels and interrogation experts, made available by countries like Italy, Finland, Spain, France and Denmark (Frontex website). As migration flows shifted from the West African to the Central Mediterranean route, so did Frontex’s focus and since 2008 operation Nautilus has launched extensive patrols in order to monitor African migrants headed for Malta and Italy.49 Controversy concerning this operation broke loose as Human Rights Watch accused a German Puma helicopter for coordinating Italian coastguard’s handing-over of migrants to Libyan military units.50 Since 2006 Frontex has also patrolled the coastal waters between Greece and Turkey in cooperation with the Greek coastguard. As migration flows towards Europe once again shifted due to the Hera and Nautilus operations and Turkey emerged as the dominant country of transit for migrants entering Europe, these operations, falling under the heading Poseidon have also been stepped up.51 Thus, in 2010, Frontex responded by adding a land-based component to Poseidon’s maritime operations, in order to cover the Greek and Bulgarian borderlands. Depending on the political discourses in Europe, these general Frontex operations are also boosted by more exceptional operations. Thus, as 34,000 individuals arrived on the borders of Greece with Turkey in the first nine months of 2010, compared with 29,100 in all of 2008, Frontex implemented, for the first time ever, its exceptional RABIT (Rapid Border Intervention Teams) 49 50 51

In April 2010 Operation Nautilus was renamed Operation Chromos. Human Rights Watch, 2009, p. 37. F. Düvell, 2011. Studying Migration from, to and through Turkey: The Context. Turkish Migration Study Group. Compas, Oxford 2011.

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to address what European political leaders perceived as an immigration crisis.52 This meant the deployment of 200 “guest officers” from 26 EU Member States and Schengen-associated countries as well as the loan of a helicopter, minibuses, patrol cars, thermo vision vans and office units from countries like Romania, Austria, Germany, Hungary and Denmark.53 Similarly, as the so-called North African Spring occurred in 2011 and prompted around 52,000 Tunisians, Egyptians and Libyans to set sails for Lampedusa, Frontex rushed to implement the operation called Hermes Extension, where coastal patrol vessels, aircrafts and experts were made available by countries like Italy, Denmark, France, Germany, the Netherlands, Portugal and Spain (Frontex website). While the activities of Frontex illustrate the dynamic character of the European borderscapes’ control infrastructure, the growth of another control practice illustrate the relational and multi-local character of the EU borderscapes, namely deportations through readmission agreements. Deportations take place through bilateral and multilateral readmission agreements, that is, interstate relations on border control. From the 1980s and onwards, Member States like Italy, Greece, Spain and France have concluded an ever-increasing amount of readmission agreements. These allow the states to place failed asylum seekers from third countries on deportation flights and transport them out of Europe. To name a just a few, readmission agreements exist between Spain and Morocco, Italy and Libya, France and Algeria, and Greece and Turkey. This has resulted in various kinds of return operations, many of which have been accused of violating the rights of migrants. For instance, the Greek practice of leading groups of 50-100 people to the river Evros at nightfall, and push them towards Turkey in small boats has been accused of leading to numerous drownings,54 or the Italian-Libyan push back practice, commenced in 2009, whereby Italian-bound migrants are intercepted in international waters and returned to Libyan military units. Despite these controversies, deportations have evolved into a corner-stone in the material dimension of the EU borderscapes of the 21th century. Thus, the total amount of readmission agreements between EU Member States and third countries has increased from 33 in 1986, to 156 in 1995, 186 in 2004 and

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Frontex. Interceptions at EU land and sea borders during 2008. Frontex, Warsaw 2009; Frontex. Situation of irregular migration in Greece. Frontex, Warsaw 2010b. Frontex. Frontex to deploy 175 Specialist Border-control personnel to Greece. Frontex press release. Frontex, Warsaw 2010a. Human Rights Watch. Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants in the Greece/Turkey Entrance to the European Union. 2008.

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216 in 2010.55 In 2009, the European use of deportations was further reified on the common-European level as joint Frontex deportations were introduced. While Frontex up until then was coordinating Member States’ deportations and chartered flights on behalf of the states, the Agency now charters flights and conducts the deportations itself. This has resulted in a swift rise of Frontex deportations: while the Agency coordinated 15 joint deportation flights in 2008, it was involved in 32 flights in 2009 and 39 flights the following year.56 The systematic nature of these operations is also illustrated by the fact that the Agency set up “return coordination offices” in Greece and Malta in order to assist local authorities in dealing with travel documents and returning illegally present third-country nationals .57 In the last two years 1,622 and 2,038 persons, respectively, have been deported to countries like Nigeria, Cameroon, Ivory Coast, Burundi, Syria, Iraq, Ukraine, Kosovo, Albania, Georgia, Ecuador and Columbia. Receiving, respectively, 17 and 15 deportation flights, Nigeria has emerged as the main destination for European deportees. The general trend towards the increased use of deportations follows the political priorities stated in the 2002 Seville Presidency Conclusions, which called for the “speeding up of the conclusion of readmission agreements currently being negotiated and approval of new briefs for the negotiation of readmission agreements with countries already identified by the countries.”58 However, the Seville goals have faced difficulties: Although Frontex concluded a working arrangement with Nigeria in January 2012, others countries, like Morocco, have so far been unwilling to conclude multilateral return arrangements with the EU out of fear that they will be transformed into dumping zones for Europe’s deportees. These disagreements illustrate how the relational character of the EU borderscapes means that they are shaped by dynamics of localized geopolitics, that is, how the relational character of the European borderscapes creates variations in the kinds of control enforced by the EU borders.59 Yet, despite these examples, it is safe to say that the EU is

55

56 57 58 59

J-P. Cassarino, Unbalanced Reciprocities: Cooperation on Readmission in the Euro-Mediterranean Area. The Middle East Institute, Special Edition, Viewpoints, Washington D.C. 2010, p. 11; Mirem Website (http://www.mirem.eu/datasets/agreements/). Frontex. General Report 2009. Frontex, Warsaw 2010c; Frontex. General Report 2010. Frontex, Warsaw 2011. Frontex, 2010c, p. 27. Council …, 2002, p. 8. C. Dahlman and G. Ó Thuathail, “Broken Bosnia: Localized Geopolitics of Displacement and Return in Two Bosnian Places”. Annals of the Association of American Geographers 95(3) 2005: 644-662.

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very successful in boosting its deportations policies, and that this has grave consequences for migrants. The border activities of Frontex and of Member States require extensive funding, but this financial aspect of borderscapes is surprisingly under-examined. Yet, the reconfiguration of the European borderscapes has transformed the European borders themselves into sites of vast profit and circulation of funds.60 This is also reflected in the budget of Frontex itself, which increased from €6.2 million in 2005, over €42 million in 2007 to around €90 million in 2010. Similarly, the Programme for Solidarity and Management of Migration Flows has dispersed billions of Euros to activities such as deportations and border surveillance. The Solidarity Programme was also used to fund the construction of the EUROSUR programme with €900 million, a programme, which the European Parliament ratified in the fall of 2013. While European media and politicians often summarily describe EUROSUR as an “early warning system,” its development is useful to illustrate the current political dynamics in the EU borderscapes as well as some of the risks created by this development. The goal of EUROSUR is to construct a “common pre-frontier intelligence picture” (European Commission 2011: 4) capable of providing full situational and “real-time” awareness of cross-border movement by gathering information about migrant mobility in third countries by integrating a range of control and surveillance technologies, including aerial and satellite images.61 EUROSUR was outsourced to the German conglomerate ESG, who facilitate this technological restructuring of the European borderscapes, via extensive subcontracting to private security companies and the European weapons industry who introduced a wide range of new and advanced surveillance and control practices to European border control. For instance, the participants in the TALOS project (Transport Autonomous patrol for Land border Surveillance system) include the Turkish electronic and military company Aselsan and the Hellenic and Israeli aerospace industries and the project is subsidized by the EU with €12.9 million out of €19.9 million. TALOS’ goal is to develop high tech drones capable of tracking smugglers and illegal migrants. Another 60

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Lemberg-Pedersen, M. “Private Security Companies and the European Borderscapes”, in Thomas Gammeltoft-Hansen and Ninna Nyberg Sørensen (eds.), The Migration Industry: The Commercialization of International Migration. Global Institutions Series. Routledge, New York 2013. European Commission. Determining the technical and operational framework of the European Border Surveillance System (EUROSUR) and the actions to be taken for its establishment. Commission Staff Working Paper. SEC(2011) 145 final. January 28, 2011. Brussels 2011.

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example is the seaBILLA project, which involves Eurocopter, EADS, Thales Defense, BAE Systems and Finmeccanica-subsidiary Aleania Aeronautica (Sea Border Surveillance) and receives EU subsidies worth €9.8 million out of the total project costs of €15.5 million. seaBILLA focuses on fighting boat migration in the Atlantic and South Mediterranean Seas through unmanned air systems and passive sensors. From 2007 to 2009 the EU has supported 152 such advanced security projects through its 7th Framework Programme for Research. Many concern border control, while others develop biometric surveillance technologies to be used for monitoring the populations of European countries. Frontex is also involved in facilitating this military industrial restructuring of European border control as the Agency’s Research & Development Unit participates in several EUROSUR projects. Indeed, the Frontex R&D Unit was set up to facilitate “information exchange between border guard authorities, research institutes, universities and industry,” an exchange it actively promotes by arranging workshops where the security and military industry can demonstrate its newest technologies, and also by participating in working groups in blurred public-private policy forums, like the European Security Research Innovation Forum (ESRIF). A recent amendment of Frontex’s mandate has meant that the collusion of public and private interests have been intensified even further, as the Agency no longer loans equipment from EU Member States, but is allowed to build its own permanent pool of equipment. The way in which the creation of Frontex, the systematization of deportations and the EUROSUR project have introduced a vast range of new control measures into the Euro-African borderscapes, illustrates the pervasive nature of the restructuring processes of the European borderscapes. As these processes are shaped by powerful and overlapping political and commercial interests, they have so-called lock-in effects, that is, self-reinforcing dynamics, which are difficult to alter once implemented. The militarization and externalization of European border control facilitated by the political desire to avoid asylum seekers and to boost the European security and military industry is premised on the externalized prevention of “illegal migration,” which undermines attempts to find other protection-sensitive forms of border control.

Conclusion The EU’s attempts to justify externalization as ensuring protection elsewhere, ignores the fact that the cooperation with third countries has primar-

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ily taken the form of boosting border infrastructures potent with the power and force to coerce migrants. Practices such as externalized detention camps, Frontex operations, Italian-Libyan push backs, “escorted deportations” and EUROSUR’s common pre-frontier intelligence picture are all geared to prevent immigration and contain migrants in regions bordering Europe. As the countries bordering Europe are not interested in becoming dumping zones for people unwanted by Europe, this has effectively created a transnational system of interlinked exclusions where migrants are circulated between control nodes in different states. The political will of EU Member States to secure the right of migrants seems to be in short supply. In fact tracing the development of Europe’s externalization of camps, interceptions and deportations reveals that the detrimental effects of the EU border system for migrants’ rights seems to be the result of an active strategizing by European actors, illustrated by the Northwestern Triade, and particularly by the British and German governments considerations concerning the principle of non-refoulement. Accordingly, the EU’s choices to close down legal channels of migration and boost the control sectors of repressive regimes in third countries have facilitated rather than preempted the trend of irregular migration. That the Schily Proposal was a transformative event in this respect, since it retained the Northwestern Triade’s radical idea of mass deportations, but dropped the idea of allowing access to European asylum procedures in third countries. Although the European idea of exporting asylum obligation is very problematic in itself, the Schily Proposal showed how European governments believed that even such a policy would result in too many asylum claims. Accordingly, the shift towards systematizing interceptions in international waters symbolizes how the EU externalization agenda has turned its back to the ambition of creating protection elsewhere. I claimed that the EUROSUR programme illustrates how the political drive to tighten the European border control has spawned a massively lucrative borderscape industry. Here, private security companies and the European arms industry receive substantial subsidies from various EU financial instruments and work closely together with the Frontex Agency’s Research & Development Unit to militarize Europe’s external borders. As the arms industry’s desire to develop and sell evermore advanced control products is premised on a notion of border control that is geared only towards excluding migrants, this technological restructuring of the EU borderscapes directly undermines any attempts to introduce more protection sensitive border control practices. The testimonies of migrants having experienced the brutal conditions in Libyan detention camps and the fact that thousands have drowned in the

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Mediterranean are crucial indicators that the political drive to avoid asylum seekers in Europe has created an abusive system of transnational migration and border control. The EU borderscapes of the 21th century are thus characterized by multi-local suffering as a system has been constructed, which offers protection nowhere, and produces rights violations elsewhere.

Literature and References Agnew, J. “The territorial trap: the geographical assumptions of international relations theory”. Review of International Political Economy, 1(1) 1994: 51-80. Amnesty International. UK/EU/UNHCR: Unlawful and Unworkable, AI Index: 61/004/2003. Balzacq, T. “Frontiers of Governance: Understanding the External Dimension of EU Justice and Home Affairs”, in Thierry Balzacq (ed.), The External Dimension of EU Justice and Home Affairs: Governance, Neighbours, Security. Palgrave Macmillan, Hampshire 2009. Betts, A. and Milner, J. The Externalisation of EU Asylum Policy: The Position of African States, DIIS Brief December 2007, Copenhagen 2007. Betts, A. The creation of transit centers outside the European Union. Memorandum, Committee on Migration, Refugees and Demography. AS/Mig 06. 2006. Boswell, Christina, The “external dimension” of EU immigration and asylum policy. International Affairs, 79(3) 2003: 619-38. Cassarino, J-P. Unbalanced Reciprocities: Cooperation on Readmission in the EuroMediterranean Area. The Middle East Institute, Special Edition, Viewpoints, Washington D.C. 2010. Commission of the European Communities. Technical Mission to Libya on Illegal Migration, November 27 –December 6, 2004 Report, No. 7753/05. Brussels 2005a. Commission of the European Communities. Communication from the Commission to the Council and the European Parliament: On Regional Protection Programmes. 1.9.2005, Brussels. COM(2005) 388 final. 2005b. Commission of the European Communities. On the Managed Entry in the EU of Persons in Need of International Protection and the Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions. 4.6.2004, Brussels. COM(2004) 410 final. 2004. Council of the European Union. Commission Staff Working Document: on the fulfillment of the 29 measures for reinforcing the protection of the external borders and combatting illegal immigration adopted at the Justice and Home Affairs Council meeting, held on Brussels on 25 and 26 February 2010. 29.11.2010, SEC(2010) 1480 final. 2010.

losing the right to h ave rights

415

Council of the European Union. 2664th Council meeting. Justice and Home Affairs. Luxembourg. 2-3 June. 2005. Council of the European Union. 2463rd Council meeting. General Affairs and External Relations, 14183/02 (Presse 350), 18.11.2002. Brussels 2002a. Council of the European Union. Seville European Council 21 and 22 June 2002: Precidency Conclusions, OR 13463/02, POLGEN 52. 29.12.2002. 2002b. Dahlman, C. and Ó Thuathail, G. “Broken Bosnia: Localized Geopolitics of Displacement and Return in Two Bosnian Places”. Annals of the Association of American Geographers 95(3) 2005: 644-662. ”Danish Proposal.” UN Third Committee. Summary Record 39th meeting. UN General Assembly forty-first session, held on Friday, November 7th 1986. Distr. General A/C.3/41/SR.39. 1986. Doctors Without Borders. Activity Report 2006. 2006. Düvell, F. 2011. Studying Migration from, to and through Turkey: The Context. Turkish Migration Study Group. Compas, Oxford 2011. European Commission. Determining the technical and operational framework of the European Border Surveillance System (EUROSUR) and the actions to be taken for its establishment. Commission Staff Working Paper. SEC(2011) 145 final. 28.1.2011. Brussels 2011. Fischer-Lescano, A. and Löhr, T. Border Controls at Sea: Requirements under International Human Rights and Refugee Law. European Center for Constitutional and Human Rights. 2007. Frontex. General Report 2010. Frontex, Warsaw 2011. Frontex. Frontex to deploy 175 Specialist Border-control personnel to Greece. Frontex press release. Frontex, Warsaw 2010a. Frontex. Situation of irregular migration in Greece. Frontex, Warsaw 2010b. Frontex. General Report 2009. Frontex, Warsaw 2010c. Frontex. Interceptions at EU land and sea borders during 2008. Frontex, Warsaw 2009. GADEM. The Human Rights of Sub-Saharan Migrants in Morocco. GADEM 2010. Gammeltoft-Hansen, Thomas, Access to Asylum. Cambridge University Press, Cambridge 2011. Gil-Bazo, M.-T. “The Practice of Mediterranean States in the context of the European Union’s Justice and Home Affairs External Dimension. The Safe Third Country Revisited.” International Journal of Refugee Law, Vol. 18, No. 3-4, 2006: 571-600. Human Rights Watch. Pushed Back, Pushed Around. 2009. Available at: http://www. hrw.org/en/reports/2009/09/21/pushed-back-pushed-around-0, accessed October 2nd, 2009. Human Rights Watch. Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants in the Greece/Turkey Entrance to the European Union. 2008.

416

ch apter 14

Human Rights Watch. Nowhere to Turn: State abuses of unaccompanied migrant children by Spain and Morocco. 14(4)D. 2002. Hurwitz, A. The collective responsibility of states to protect refugees. Oxford University Press, Oxford 2009. “Italian Libyan Friendship Treaty.” Trattato di Amicizia, Partenariato e Cooperazione tra la Repubblica Italiana e la Grande Giamahiria Araba Libica Popolare Socialista. 2008. Jesuit Refugee Service Malta. Do They Know? Asylum seekers testify to life in Libya. Malta 2009. Justitsministeriet. 2012. Discussion paper: Informal Justice and Home Affairs Ministers’ Meeting. Copenhagen 26-27 January 2012. Lavenex, Sandra and Emek Ucarer, “The External Dimension of Europeanization: The Case of Immigration Policies.” Cooperation and Conflict, 39(4) 2004: 417. Lemberg-Pedersen, M. “Private Security Companies and the European Borderscapes”, in Thomas Gammeltoft-Hansen and Ninna Nyberg Sørensen (eds.), The Migration Industry: The Commercialization of International Migration. Global Institutions Series. Routledge, New York 2013. Neue Zürcher Zeitung, “Zusammenarbeit mit Libyen gegen Einwanderung wird konkret,” 3 June 2005. Noll, G. “Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centers and Protection Zones”. European Journal of Migration and Law. 5, 2003: 303-341. Official Journal of the European Union, Regulations amending Council regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operation Cooperation at the External Borders of the Member States of the European Union, Regulation (EU) No 1168/2011, Article 6-7. 22 November 2011. O Thuathail, G. Critical Geopolitics. Routledge, London 1996. Rajararam Prem K. and Grundy-Warr C. (eds.) Borderscapes: Hidden Geographies and Politics at Territory’s Edge. University of Minnesota Press, Minneapolis, Minnesota 2007. ”Schily Proposal.” Bundesministerium des Innern: Effektiver Schutz für Flüchtlinge, wirkungsvölle Bekämpfung illegaler Migration – ûberlegungen des Bundesministers des Innern zur Errichtung einer EU-Aufnahmeeinrichtung in Nordafrika, Pressemitteilung. Bundesministerium des Innern 2005. Taylor, S. “Protection Elsewhere/Nowhere”, International Journal of Refugee Law, 18(2) 2006: 283-312. ”UK New Vision.” New Vision for Refugees. UK Government 2003. UNHCR. “UNHCR’s Three-Pronged Proposal”. UNHCR Working Paper, 2003. UNHCR. “The Concept of ‘Protection Elsewhere’.” International Journal of Refugee Law 7. 1995.

losing the right to h ave rights

417

van Houtum, H. and van Naerssen, T. “Bordering, Ordering and Othering.” Tijdschrift voor Economische en Sociale Geografie, 93(2) 2002: 125-136. Vaughan-Williams, N. Border Politics: The Limits of Sovereign Power. Edinburgh University Press, Edinburgh 2009. Walt, V., “Did NATO Leave 62 Africans to Die at Sea Off Libya?” Time World (9.May 2011) (http://www.time.com/time/world/article/0,8599,2070509,00.html). Wimmer, A. and Glick Schiller, N. “Methodological nationalism and beyond: nationstate building, migration and the social sciences.” Global Networks, 2(4) 2002: 301334.

Web Resources EU Global Approach to Migration. Available at http://ec.europa.eu/home-affairs/ policies/external/external_ga_en.htm. Frontex R&D website: http://www.frontex.europa.eu/structure/capacity_building_ division/research_development/. Frontex website (25.2.2011): Frontex Guest Officers Sent to Work in Italy. Available at: http://www.frontex.europa.eu/newsroom/news_releases/art97.html. Frontex website (19.12.2006) Longest Frontex coordinated operation – HERA, the Canary Islands. Available at: http://www.frontex.europa.eu/newsroom/news_releases/art8.html. Mirem. Available at: http://www.mirem.eu/datasets/agreements/. United Against Racism. Available at: http://www.unitedagainstracism.org.

Index A Amnesty International 104, 301, 321, 323, 324, 327, 333, 334, 360, 401, 414 armed conflict 12, 13, 117, 118, 119, 122, 123, 124, 302, 303, 328, 337, 361, 362, 363, 364, 365, 370, 371, 372, 373, 380, 383, 384-390, 391, 392 transnational 48, 363, 387-388 armed drones 12, 13, 349, 356, 360-392, 411 US justifijication for 12, 349, 356, 361-365 authoritarianism 9, 216, 218, 219, 220, 221, 232, 234, 235, 237, 242, 247, 248, 249 competitive 220, 232, 234, 237, 247, 248 B borderscapes 394, 395-399, 400, 405, 407, 409, 410, 411, 412, 413, 414, 416 boundary maintenance 189, 193-194, 201, 202 Bush, George W. 11, 12, 174, 178, 317, 322, 332, 333, 337-359, 363 C capital punishment  11, 178, 299, 301, 310, 311, 313, 318, 319, 320, 328, 329, 330, 331 Central and Eastern Europe 9, 214, 308 civil and political rights 8, 11, 98, 105, 110, 116, 122, 124, 164, 168, 170, 203, 205, 211, 285, 296, 305, 310, 316, 318 civil society 2, 4, 9, 110, 175, 217, 234, 237, 238, 239, 242, 247, 259, 281, 282, 283, 285, 286, 290, 292, 293, 294 Cold War 7, 91, 92, 95, 96, 97, 98, 99, 102, 103, 105, 120, 126, 128, 157, 164, 169, 172, 185, 187, 220, 224, 248, 250, 266, 308, 394 coloniality 41, 42, 43, 46, 50, 52, 53, 59, 64, 66, 69, 70, 71, 72, 283 combatant 123, 124, 338, 343, 344, 345, 350, 351, 352, 359, 364, 384 community identity 188, 200, 202, 209, 210 conceptions 5, 8, 9, 188-212 Constantinople 136, 137, 138, 144-148, 151, 155, 156 constitutional crisis 9 constitutions (Bolivia, Ecuador) 10, 61, 66, 68, 87, 88, 93, 166, 184, 188, 205, 216, 218, 276-297, 300, 301, 302, 307, 328,

Council of Europe 73, 74, 75, 76, 77, 79, 85, 87, 88, 89, 124, 125, 126, 216, 240, 247, 304, 308, 309, 310, 311, 312, 314, 315, 329, 334 crimes against humanity 134, 136, 137, 140, 145, 146, 147, 154, 155, 330  cruel, inhuman or degrading treatment or punishment 11, 303, 305, 306, 313, 316, 318, 319, 324, 325, 328, 331, 332, 335 Cuba 9, 49, 82, 95, 97, 250-275, 317, 331, 367, 378, 390 D death penalty 11, 178, 204, 208, 301, 310, 311, 313, 315, 317, 320, 325, 327 decolonization 7, 49, 71, 91, 92, 94, 127, 128 democracy 1, 2, 3, 9, 57, 75, 94, 96, 166, 184, 185, 202, 214, 215, 216, 218, 219, 220, 222, 223, 233, 234, 235, 236, 241, 242, 247, 248, 249, 276, 283-293, 294, 296, 308, 312, 329, 336, 359 transitional 9, 214-249 diversity 3, 6, 74, 81, 83-86, 163, 185, 198, 284, 289 drones 12, 13, 349, 356, 360-392, 411 duties of individuals 6, 75, 80, 83, 87 E economic, social and cultural rights 8, 98, 99, 105, 110, 117, 164, 167, 168, 170, 175, 288, 292, 296, 297, 317, 331 ”enemy combatants” 338, 344, 350, 351, 352, 384 enforced disappearances 11, 311, 317, 323, 324, 325, 327, 329, 330 EU externalization 13, 393-417 European and US American human rights 9, 202 European Convention on Human Rights 11, 34, 73, 74, 77, 81, 89, 90, 165, 167, 201, 204, 206, 209, 304, 305, 329, 334, 335, 376 EUROSUR 394, 399, 407-412, 413, 415 Exclusion 10, 48, 173, 182, 251, 256, 258, 259-265, 271, 413 Executive Power 232, 233, 244, 280, 322, 337, 338, 339, 340, 341, 344, 349, 350, 355, 357

index F France 2, 7, 63, 74, 81, 85, 109, 131, 132, 133, 134, 136, 138, 140, 141, 143, 147, 154, 155, 156, 166, 183, 199, 202, 204, 206, 207, 244, 299, 303, 305, 309, 315, 318, 334, 377, 398, 408, 409 Frontex 394, 405, 407-412, 413, 415, 417 G Genocide 40, 132, 134, 137, 147, 148, 157, 158, 159, 160, 182, 207, 304 Germany 7, 17, 18, 39, 63, 74, 78, 79, 81, 84, 85, 131, 132, 133, 134, 135, 140, 141, 142, 143, 144, 151, 152, 155, 156, 166, 172, 184, 201, 202, 204, 223, 318, 381, 390, 398, 409 Geworfenheit 191 Greece 74, 115, 146, 214, 215, 299, 308, 314, 315, 317, 318, 382, 408, 409, 410, 415 Guantanamo 46, 57, 322, 331, 332, 333, 337, 343, 344, 346, 347, 348, 351, 352, 353, 357, 359, H holistic perception 6, 73, 83, 87 human rights as a shared and much-needed transatlantic discourse 8, 165 core of 8, 41, 67, 73, 164, 166-171, 203 extraterritorial application of 374, 379382, 383 transatlantic tensions expressed within the area of 8, 164 Humphrey, John 5, 16-40, 81, 82, 118, 304, 305, 328, 335 I inclusion 10, 45, 48, 171, 173, 182, 246, 251, 256, 271, 277, 288, 289, 290, 294 indigenous 6, 41, 42, 45, 48, 49, 51, 52, 53, 54, 55, 56, 59, 60, 61, 63, 65, 68, 88, 207, 278, 279, 280, 281, 282, 284, 285, 286, 287, 288, 290, 294, 295, 296 institutions 4, 8, 23, 63, 78, 80, 86, 164, 165, 170, 172-183, 199, 216, 218, 220, 221, 225, 232, 234, 238, 239, 242, 243, 245, 246, 276, 277, 278-283, 284, 285, 286, 287, 294, 296, 313, 339, 396 International Commission of Jurists (ICJ) 104, 111, 118

419 International Criminal Court 11, 130, 133, 134, 148, 149, 150, 154, 155, 156, 157, 160, 174, 181, 203, 316, 317, 327, 330, 331 International Criminal Tribunal 7, 130-160 international human rights law (IHRL) 6, 12, 17, 20, 21, 22, 83, 85, 86, 87, 99, 181, 203, 294, 302, 304, 324, 327, 328, 360-392 international humanitarian law (IHL) 12, 118, 123, 124, 302, 303, 328, 335, 361, 379, 380, 384, 385, 386, 392   international law 5, 6, 8, 12, 16, 17, 18, 19, 20, 25, 27, 28, 30, 31, 34, 35, 39, 52, 55, 56, 67, 85, 91, 97, 99, 106, 118, 120, 123, 124, 126, 128, 133, 135, 136, 140, 144, 157, 160, 164, 170, 171, 172-183, 185, 187, 197, 203, 294, 318, 328, 332, 334, 336, 338, 339, 346, 347, 360, 361, 362, 363, 371, 375, 379-380, 383, 385, 387, 389, 390, 404 attitudes toward 8, 164 International Law Association (ILA) 16, 19, 26, 27-32, 35, 36, 40, 148 International Military Tribunal 130, 132, 139, 153, 156, 157 interplay between IHL and IHRL 365, 384, 386, 387  Italy 74, 101, 112, 140, 141, 146, 166, 242, 314, 315, 318, 403, 404, 405, 407, 408, 409, 417 J Jamaica 6, 7, 91-129 Japan 7, 131, 132, 139, 140, 141, 154, 156, 159, 160, 184, 194, 214, 242 L Latin America 4, 5, 6, 10, 11, 29, 73-90, 101, 108, 109, 110, 121, 203, 215, 218, 219, 222, 235, 248, 262, 265, 266, 271, 275, 276-297, 299, 311, 323-327, 329, 330, 331 Lauterpacht, Hersch 5, 16-40 criticism of the Universal Declaration of Human Rights 27-34, 36 proposal of an International Bill of the Rights of Man 19-26 lawfare 339, 344 legality 7, 12, 49, 360-392 Leipzig 138, 142, 143, 144, 148, 150, 155, 156, 158 Libya 13, 349, 350, 356, 348, 361, 393, 401, 403, 404, 405, 406, 407, 408, 409, 413, 414, 416, 417

420 Lieber, Francis 135, 159, Lieber Code 135, 302, 328 limitation of rights 6, 76, 77, 78, 80, 83, 87 living well 288-291, 292, 293, 294 M Military Tribunals 130, 132, 139, 141, 144, 145, 157, 333, 342, 345, 352 N National Defense Authorization Act (NDAA) 352, 353, 354, 355, 358 Nuremberg 7, 130, 133, 134, 135, 137, 139, 142, 148, 151, 153, 154, 155, 156, 157, 158, 159, 160 O Obama, Barack 12, 322, 333, 337-359, 360, 362, 363 Ottoman Empire 7, 131, 139, 144, 146, 303 P participation 10, 222, 248, 276, 278, 279, 281, 282, 283, 284-287, 288, 289, 290, 293, 294, 296 pluralism 9, 44, 71, 84, 85, 86, 89, 228, 232, 237, 242, 246, 247, 249 inefffective 9 pluri-ethnic 283 pluri-national 10, 276, 279, 280, 281, 283284, 286, 293 power mechanisms 251, 253, 256 presidential aggrandizement 12, 337, 353 R race 18, 23, 41-72, 76, 93, 95, 98, 101, 108, 109, 110, 112, 115, 159, 171, 186, 207 racial discrimination 45, 61, 93, 98, 99, 102, 105, 112, 113, 114, 115, 117, 120, 121, 316 regime change 9, 214-249 hybrid 9, 219, 220, 226-236, 237, 238, 248 Regional Protection Programmes 13, 399, 404, 414 religious intolerance 98, 99, 105 revolution 2, 9, 10, 50, 58, 62, 63, 131, 143, 165, 166, 218, 228, 229, 236, 237-243, 244, 247, 250, 251, 252, 254, 255, 256, 257, 258, 259, 261, 262, 263, 264, 267, 268, 269, 271, 272, 273, 274, 300, 304

index Richardson, Egerton 101, 102, 103, 108, 114, 117, 118, 119, 128 right to life 12, 290, 291, 292, 305, 307, 310, 313, 331, 361, 364, 365-392, right to water 276, 288-293, 295, 296 Russia 84, 131, 132, 134, 136, 155, 156, 202, 228, 229, 231, 232, 233, 244, 246, 314, 315, 370, 381, 383 S social struggles 5, 41-72, Soviet Union 9, 81, 95, 96, 102, 105, 110, 111, 115, 116, 117, 128, 131, 132, 143, 147, 149, 153, 156, 179, 180, 215, 218, 224, 225, 226, 227, 228, 229, 230, 231, 232, 236, 260, 265, 266 State Secrets Privilege 342, 348 Stimson, Henry L. 152, 153, 154, 155 Strawberry and Chocolate 10, 251, 259-265 summary executions 11, 323, 324, 329, 330, 371 T Teheran International Conference on Human Rights (1968) 101, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 127, 128 Teitgen Report (1945) 75, 76, 77 Tokyo 130, 133, 134, 137, 139, 154, 155, 157, 159, 160 torture 3, 4, 11, 37, 136, 183, 289, 299-336, 337, 338, 342, 343, 344, 346, 348, 349, 357, 359, 374, 381, 402, 406 transition 4, 9-10, 48, 213-297 models of 9, 217-226 democratic 9, 202, 214, 215, 216, 218, 219, 220, 225, 232, 233, 241 Turkey 7, 74, 106, 137, 140, 144, 145, 146, 147, 155, 207, 309, 314, 315, 317, 329, 334, 370, 376, 382, 386, 408, 409, 415 U Ukraine 9, 81, 85, 105, 115, 214-249, 314, 315, 317, 329, 399, 410 UN Charter (1945) 19, 30, 74, 80, 81, 97, 307, 363 UN Human Rights Year (1968) 100, 101, 102, 103, 104, 105, 106, 109, 110, 112, 114-120, 121, 124, 125 Unitary executive theory 339, 341, 344

index United Kingdom 7, 63, 74, 78, 79, 80, 81, 85, 102, 105, 107, 114, 117, 318, 370, 375, 401 United Nations 11, 18, 26, 28, 29, 30, 32, 33, 34, 35, 37, 38, 39, 81, 87, 90, 92, 95, 97, 98, 101, 104, 106, 107, 108, 109, 110, 111, 113, 114, 115, 117, 121, 122, 123, 124, 127, 131, 151, 179, 292, 293, 304, 316, 324, 326, 327, 329, 330, 331, 335, 336, 337, 390, 392 United States 1, 2, 3, 4, 7, 8, 11, 25, 29, 38, 49, 73, 81, 95, 96, 105, 106, 107, 108, 109, 116, 126, 127, 128, 130, 133, 140, 141, 162, 164, 170, 171, 175, 176, 177, 178, 183, 184, 186, 187, 188212, 214, 316-323, 330, 332, 336, 337, 338, 339, 341, 342, 343, 346, 347, 350, 351, 355, 357, 359, 362, 363, 368, 379, 391 Universal Declaration of Human Rights 16-40, 42, 47, 58, 74, 76, 77, 83, 89, 90, 92, 304, 305, 306, 328, 329, 334, 336 debate about the drafts of the 16-40 opposition to non-binding nature of the 27, 32 universality 47, 84, 89, 91, 98, 128, 163, 191, 208, 209 US exceptionalism 11, 163, 164, 165, 169, 180, 184, 185, 186, 187, 316, 330, 332, 333

421 V Vienna World Conference on Human Rights (1993) 83, 86, 120, 121, W war crimes 7, 130, 134, 135, 136, 138, 140, 141, 144, 145, 146, 147, 151, 152, 154, 155, 157, 158, 159, 160, 241 war on terror 4, 12, 173, 183, 338, 357, 358 ”War on Terror” 1, 11, 12, 124, 322, 332, 333, 337-359 World War First 7, 17, 21, 130, 131, 132, 133, 134, 136, 138, 139-149, 154, 160, 229, 303 Second 6, 7, 21, 39, 42, 73, 80, 82, 87, 88, 94, 100, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 149-154, 155, 156, 158, 160, 166, 204, 208, 209, 215, 232, 242, 304, 307, 314, 316, 323 Y Yanukovych, Victor 9, 239, 240, 243-247