For this important topic, we broke up on the Saturday into two groups, instead of the usual three, the subject dividing naturally into legal and political aspects, although, as so often, there is a grey area where some overlap is inevitable.
A number of themes emerged from the weekend’s debates. Of these, the most persistent was the split between those who believed that the term “human rights” meant nothing if it did not embrace, in addition to civil and political rights, economic, cultural and social rights as derived originally from Locke and defined more recently in various international instruments, and others who saw the right not to be imprisoned (or executed) without due process of law, the right not to be subjected to torture, and freedom of speech, as the “core” rights which should be the primary area of concern when it came to accountability and would, if protected, permit political activity directed towards the realisation of the rest. The latter argued that a right, properly so called, entailed the possibility of a legal remedy and that, desirable and important as such goals as proper housing and health care might be, they were not justiciable in the same way: and that if only because of the large public costs involved, (compared to the relatively cheap core rights), they should be pursued by political means. This group also argued that, on tactical grounds, to widen the category of human rights in the way suggested, would tend to down-grade the core rights and make their realisation more difficult. The former group, perhaps the majority, disputed this approach with some passion and put the realisation of economic and social rights on the same footing as, if not ahead of, the core rights. All however, I think, conceded that in the eyes of the third world, the economic and social rights enshrined in various international instruments, to be realised as resources permitted, were nevertheless not so much duties third world governments saw themselves as owing to their own peoples (as it might be argued was the case with core rights), but obligations owed to the developing world by the developed. In that different perception, it was suggested, lay the seeds of trouble in the future if the third world, “the South”, came to see the core rights as products of “Northern” culture which were being foisted on them.
The meeting examined the emerging jurisdiction of the European Courts at Strasbourg and Luxembourg, and the Basket III provisions of the Helsinki Final Act and its associated instruments, as well as similar mechanisms such as the Inter-American Commission on Human Rights, and the newly-established African Commission of Human Rights established under the OAU. While the work of the European Court at Strasbourg was praised, certain short-comings were noted: the absence of adequate provisions dealing with racial discrimination, the absence of any mechanism for appeal from the rulings on admissibility by the Commission, the cost, the delays, the difficulty of obtaining reports of cases and so on. The strength of the system lay in the broadly similar cultural base of the parties to the European Convention on Human Rights. It was probably not a model for other regions. All agreed that there should be no question of lowering standards to permit accessions - double standards here were unacceptable, though acceding states, it was noted, could make reservations. The Helsinki process was praised, but some saw it falling away as more states of East and Central Europe acceded to the Council of Europe and the legal system of the European Convention. Some unease was expressed that in that process the US, Canada and for the foreseeable future at least, the Soviet Union, might be left out
Some asserted that there was no likelihood that the US Senate could be brought to ratify any instrument which subjected the judgements of the US Supreme Court to international revision. Others felt that in time that reluctance might be overcome and urged that the West Europeans should be more active in pressing the US on this, and also in making US courts and law schools more aware of developing European jurisprudence. It was generally agreed that responsibility for protecting human rights was primarily a domestic one, but that a mechanism for international oversight was healthy.
There was much discussion of the UN human rights establishment. The Human Rights Committee, it was felt, did much good work under the UN Covenant on Civil and Political Rights and the Optional Protocol machinery, but received less public notice than the Commission of Human Rights which, because of its political basis, received more publicity, but, for the same reason, was less objective and consistent. Double-standards were very apparent in the Commission’s workings, though even so voting patterns did exercise influence. Although the point was not laboured, it was said that the established machinery both in the UN and, for example, in Europe, was facing a growing work-load and was in general under-funded; and that in urging other nations and regions to accept international monitoring and to create or improve international judicial or quasi-judicial machinery, we must bear in mind that it all cost money.
When the meeting discussed human rights performance in the context of foreign policy, it became clear that the US, partly because of consciousness of its super-power status, partly because of its own poor record of adherence to international instruments in this field and partly for reasons stemming from the separation of powers and the consequent independent activity of Congress, tended to favour bi-lateral action in urging other nations to improve their human rights performance: the Europeans, on the other hand, seemed to prefer to act multi-laterally (a preference to be explained in my own view by, as much as anything, the belief that safety from retaliation lies in numbers). The US Congress has required an annual report from the State Department and has laid down certain specific criteria, the core human rights, which must be satisfied before, for example, aid or most favoured nation treatment may be granted. There were no similar provisions in Europe and a general lack of concern in European parliaments and foreign ministries was criticised, though not accepted as a fact by all. It would, for example, it was claimed, be helpful if the British Select Committee on Foreign Affairs were to devote more time to human rights. The Congressional requirements made for consistency which several saw as essential, albeit over a narrow field, while others believed they made for inflexibility, arguing also that important as human rights were, there were other legitimate competing and sometimes conflicting foreign policy objectives. On that view it was necessary to take each case on its merits and consistency, for its own sake, was not necessarily a virtue. All agreed that the activities of the non-governmental organisations (NGOs), such as Amnesty International, were valuable in this context: they were better able to be consistent in the field in which they operated: backed by the power of the media to bring home to people violations and distress in faraway countries, they were able to target erring governments, and by arousing world public opinion, to stimulate, and thus to enable, democratic governments to act - indeed it was said that the NGOs saw the role of their own governments as whipping boys, to put pressure on miscreant governments which might not be open to direct pressure.
This led, finally, to the discussion of sanctions, whether in the form of benefits withheld or trade boycotts, etc., and the contrasting usefulness of incentives. In general, it was agreed (though there was debate over specific cases) that there were cases where sanctions were effective, much depending on the nature of the society or economy against which they were applied, but that they were seldom decisive or quick and often ineffective or even counter-productive. (The case of the oil sanctions against Japan in 1941 which had driven Japan to war was cited.) Incentives were generally favoured: it would be right for aid donors and international aid-giving bodies, including the IMF and the World Bank, to take account of human rights performance when considering the grant of aid.
In conclusion there was a theme running through the debate that the struggle for greater respect for human rights had to be seen, in the context of foreign policy, as part of the struggle for democracy in its many and varied forms. Daily we were reminded of our common humanity by forces that transcended national boundaries, such as the international bodies and the media. Governments responsive to the needs of their peoples were less likely to engage in conflict It was therefore a matter of self-interest that democratic governments should encourage respect for human rights and the spread of democracy as a mechanism to give effect to the concept that individuals have equal value and should have a voice in their government.
This Note reflects the Director's personal impressions of the conference. No participant is in any way committed to its content or expression.
Conference Chairman: The Hon Elliot Richardson
Senior Partner, Milbank, Tweed, Hadley & McCloy, Washington DC; Chairman, The Advisory Council, American Ditchley Foundation
LIST OF PARTICIPANTS
BELGIUM
Professor Marc Bossuyt
Commissioner General for Refugees, Belgium; Representative of Belgium, UN Commission of Human Rights
BRITAIN
The Rt Hon Sir Nicolas Browne-Wilkinson
Vice Chancellor of the Supreme Court
Ms Jane Cooper
Parliamentary Officer, Amnesty International, London
Sir Vincent Evans GCMG MBE QC
Barrister-at-Law; a Judge of the European Court of Human Rights
Professor Rosalyn Higgins QC
Professor of International Law at the London School of Economics (LSE), University of London; Member, UN Committee on Human Rights; Bencher, Inner Temple; a Governor, Ditchley Foundation
Mr Anthony Lester QC
practising barrister; Bencher, Lincoln’s Inn
Mr Malcolm Rutherford
Assistant Editor, Financial Times
The Hon Timothy Sainsbury MP
Member of Parliament (Conservative) Hove; Parliamentary Under-Secretary of State, Foreign and Commonwealth Office
Ms Marie Staunton
Director, British Section, Amnesty International
Sir John Thomson GCMG
Retired as UK Permanent Representative to the United Nations (1982-87); Director, Grindlay’s Bank
Professor R J Vincent
Professor of International Relations, London School of Economics (LSE), University of London
Mr Michael C Wood
Assistant Legal Adviser, later Legal Counsellor, Foreign and Commonwealth Office
CANADA
The Hon Edward Broadbent PC
President, International Centre for Human Rights and Democratic Development
The Hon Willard Z Estey
Chairman, Central Guarantee Trust; Deputy Chairman, Central Capital Corporation
FRANCE
Dr Rony Brauman
Head, Médecins sans Frontières
M Thierry Moulonguet
Directeur du Cabinet of M Bernard Kouchner, Minister for Humanitarian Affairs, Paris
GERMANY
Professor Dr Bruno Simma
Professor of Law, University of Michigan School of Law, Ann Arbor; Member, Advisory Board on UN questions of the Foreign Ministry of the FRG; Member, Committee on Economic, Social and Cultural Rights of ECOSOC
ITALY
Signor Arnaldo de Mohr
First Counsellor, Italian Embassy, London
USA
Mr George H Aldrich
Judge, Iran-United States Claims Tribunal, The Hague (1981-); Member: United Nations Intonational Law Commission, Council on Foreign Relations, American Society of International Law and International Institute of Humanitarian Law.
Mr William J Butler
Partner, Butler & Jablow, New York; Special Counsel, American Civil Liberties Union; Member, Board of Directors, New York Civil Liberties Union, International League for Rights of Man; Member, Standing Committee on Human Rights, World Peace Through Law Center, Geneva; Chairman, International Commission of Jurists, Geneva; President, American Association for the ICJ, New York.
Mr Lloyd N Cutler
Partner, Wilmer, Cutler and Pickering (Attorneys), Washington, DC; Director, American Cyanamid Co, SE Bank Corporation; Member, US Group to Permanent Court of Arbitration, The Hague; Member, Advisory Council of the American Ditchley Foundation
Professor Ronald Dworkin
Professor of Jurisprudence, Oxford University; Member, Programme Committee, Ditchley Foundation
Professor Tom Farer
Professor of International Law and International Relations and Director, Joint Degree Program in Law and International Relations, the American University, Washington, DC
Mr William C Goodfellow
Director, Center for International Policy, Washington, DC
Professor Keigh Highet
Adjunct Professor of International Law, Fletcher School of Law and Diplomacy; Partner and now Counsel to Curtis, Mallet-Prevost, Colt & Mosle; Director and Vice-President of the American Ditchley Foundation
Dr William Korey
Director, International Research, B’nai B’rth International, New York.
Mr Aryeh Neier
Executive Director, Human Rights Watch (Africa Watch, Americas Watch, Asia Watch, Helsinki Watch, Middle East Watch)
The Hon Matthew Nimetz
Partner, Paul, Weiss, Rifkind, Wharton & Garrison, New York
Mr Michael Posner
Executive Director, Lawyers’ Committee for Human Rights, New York
Miss Jan Shinpoch
Project Director, Center for International Policy Human Rights Handbook Series
Professor Kathryn Sikkink
Department of Political Science, University of Minnesota