Human Rights in Turmoil: Facing Threats, Consolidating Achievements (International Studies in Human Rights)

306 Pages·2006·0.95 MB·English

by  Stephanie Lagoutte

Human Rights in Turmoil
International Studies in Human Rights
Volume 92
The titles in this series are listed at the end of this volume.
Human Rights in Turmoil
Facing Threats, Consolidating Achievements
by
Stéphanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith
MARTINUS NIJHOFF PUBLISHERS
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Table of Contents
Introduction
HumanRightsinTurmoil:FacingThreats,ConsolidatingAchievements 1
Stéphanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith
1. TheUNReformProcessinanImplementationPerspective 7
Morten Kjærum
2. TheFutureoftheEuropeanHumanRightsControlSystem:Fighting
withItsBacktotheWall 25
Stéphanie Lagoutte
3. HumanRightsReinforcementandGlobalisation:Reflectionsabout
GlobalGovernance 49
Hans-Otto Sano
4. TheUneasyBalancebetweenIndividualRightsandtheNecessityof
Communities 71
Sten Schaumburg-Müller
5. HumanRightsontheBattlefield 97
John Cerone
6. TerrorismandHumanRights 133
Peter Vedel Kessing
7. HumanitarianInterventionandStateSovereignty:ASocial
ConstructivistAnalysis 163
Helle Malmvig
8. ManoeuvringintheTurbulentSeaofHumanRightsandReligion:
ReligiousCommunitiesApproachingHumanRights 181
Eva Maria Lassen
9. FreedomfromWant:GlobalisationandSocialSecurity 201
Hatla Thelle
10. PrisonsandHumanRights:TheCaseofSolitaryConfinementin
DenmarkandtheUSfromthe1820suntilToday 221
Peter Scharff Smith
vi Table of Contents
11. The Right to a Nationality and the European Convention on Human
Rights 249
Eva Ersbøll
12. Reflections of a Former Judge of the European Court of Human
Rights 271
Isi Foighel
About the Contributors 285
Index 289
Introduction
Human Rights in Turmoil: Facing Threats, Consolidating
Achievements
Stéphanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith
1 Introduction
Are human rights gaining or losing ground? This question has become relevant af-
ter two decades of unprecedented progress in developing human rights standards
and institutions. The political climate during the Cold War created many obstacles,
but the fall of the Berlin Wall in 1989 and its aftermath during the following decade
created a sense of promise and progress among human rights scholars and actors.
The World Conference on Human Rights in 1993 was instrumental in creating this
atmosphere. The international community reaffirmed its commitment to human
rights by signing a programme of action which made the promotion and the pro-
tection of all human rights a priority objective of the United Nations.1
So why, a little more than a decade later, do we find ourselves wondering
whether human rights are currently losing rather than gaining ground? What has
happened to the promise and commitment of the international community?
A number of alarming signs are clouding the sky. Actions, statements and
initiatives questioning the legitimacy and validity of human rights, or even threat-
ening their very existence, have become a regular part of current political reali-
ties, even in states traditionally dedicated to the rule of law. This would have been
inconceivable ten or twenty years ago. The world’s leading democracy, the United
States of America, for example, seems to be disregarding commonly accepted
standards of international law and human rights in its current war on terrorism.
The leader of the free world is, paradoxically, also the globally leading incarcerator,
the number one prison nation in the world. Human rights are also challenged in
several other old democracies, apparently irrespective of the political orientations
– right or left – of their governments. One important observer, for example, has
addressed what she calls “the retreat from human rights” in the United Kingdom
1 World Conference on Human Rights, The Vienna Declaration and Programme of Ac-
tion, 1993.
S. Lagoutte, H-O. Sano and P. Scharff Smith (eds.), Human Rights in Turmoil, pp. 1-6.
© 2007 Koninklijke Brill NV. Printed in The Netherlands. isbn 90 04 15432 9.
2 Stéphanie Lagoutte, Hans-Otto Sano and Peter Scharff Smith
under the Labour government.2 In Denmark, ambiguous political views on human
rights also seem to have taken root during the last decade, originally motivated by
a toughening of attitudes towards immigration, but now reinforced by security and
nationalist agendas. This political ambiguity is supported by some Danish scholars
who are attacking the working methods and legitimacy of the European Court of
Human Rights.3 One cannot help asking whether human rights are simply not “in”
at the moment.
At the same time, there are tendencies and developments which tell the pre-
cisely opposite story of the undeniable consolidation of human rights. Human rights
conventions and case law are now influencing legal norms and practice everywhere
in the world. In Europe, for example, the European Court of Human Rights has
become a fundamental institution for the protection of human rights and today has
a significant impact on domestic parliaments and courts in 46 countries. The lan-
guage of human rights has become mainstream in legal circles and among NGOs
and government organisations all over the world. Globally, democratisation is con-
tinuing to spread, a fact which increases the demand for the institutionalisation of
rights regimes and for enhancing the scope of treaty body monitoring across the
world.
So where does this leave us? One thing seems certain: human rights are in
turmoil and are being challenged, weakened and strengthened in important and
groundbreaking ways in different areas and settings. This calls for closer analysis.
2 Human Rights under Attack
In the past five years, human rights have increasingly come under attack as a result
of efforts to combat terrorism. The situation is worrying and it is pertinent to con-
sider how democratic nations can make decisions that seem to disregard some of
the most basic human rights, little more than half a century after the horrors of the
Second World War. The practices adopted in the detention facility at Guantanamo
Bay are well known, but other reports have appeared of detainee abuse in Ameri-
can detention facilities in Iraq and Afghanistan.4
2 Helena Kennedy, Just Law: The Changing Face of Justice – and Why it Matters to Us All,
Vintage 2005, p. 301.
3 There was a long debate in the Danish press during spring 2005 initiated by an article
by Professor Mads Bryde Andersen (Berlingske Tidende, 13 March 2005), and followed
by a number of replies from various Danish scholars.
4 This is covered in an extensive literature. See, for example, report on the “Situation of
detainees at Guantánamo Bay”, Economic and Social Council, E/CN.4/2006/120, 15
February 2006. Concerning Iraq, see, for example, “Article 15-6 Investigation of the
800th Military Police Brigade” – the so-called “Taguba report”. Available at http://
www.humanrightsfirst.org/us_law/800th_MP_Brigade_MASTER14_Mar_04-dc.pdf
(assessed 14 December 2005). See also Leonard Rubenstein et al. “Coercive US Inter-
rogation Policies. A Challenge to Medical Ethics” in Journal of American Medical As-
sociation, Vol. 294, Sept. 28. 2005.
Human Rights in Turmoil: Facing Threats, Consolidating Achievements 3
Even though similar examples still seem unthinkable in Europe, it is an open
question to what extent the European states have been involved, directly or indi-
rectly, in handing over citizens to foreign intelligence services for special interroga-
tion in secret places of detention. In a similar vein, legislation permitting increased
surveillance, enforced secret police powers, special measures for police detention
of suspected terrorists etc. is a common source of worry for human rights experts
and organisations in Europe.
These tendencies indicate a faltering in the support for human rights respect
among dominant Western powers. This is all the more worrying because such
trends may serve to undermine the legitimacy of human rights in a situation where
threats and challenges are still imminent in parts of the world where human rights
violations prevail and where secular and religious values are contentious.
Generally, apart from the problems created by the war against terrorism, three
current challenges to human rights consolidation can be identified, namely
– The threats of nationalist and particularistic values.
– The threats emanating from insufficient response to poverty and its conse-
quences.
– The threats posed by weak performance of the human rights enforcement
system.
The threat from trends in the development of nationalist and particularistic values
is expressed in religious as well as in neo-nationalist discourses. From within the
Western world restricted access to citizenship and the tightening of asylum leg-
islation are examples of nationalist agendas. Outside the West, religious fanatics,
and governments sometimes focus on religious issues in a manner which makes
it difficult to imagine that consensus can be established on future human rights
reinforcement.
These trends are exacerbated by inadequate responses to poverty, corruption,
and migration flows. It can be argued that actors pushing to strengthen human
rights should do more to bridge human rights and development agendas, but the
reality is also that the political will in developing as well as developed states to
deal with these issues has been undermined by security, nationalist and ideological
agendas.
Finally, while the UN system is under reform, weak or inadequate systems of
human rights monitoring, dispute handling and enforcement are still prevailing.
There is a need for a heightened focus on implementation, but this has been the call
for the last 10 years. It remains therefore to be seen whether the current UN reform
process will spur enhanced effectiveness in terms of treaty body monitoring and in
increased state respect for the conventions ratified.
3 Consolidation of Human Rights Law and Practices
It is also true, however, that the human rights regime gained significant ground
during the last part of the twentieth century. Human rights have become accepted
norms in international politics and regulation, being endorsed by states, interna-