Human Rights Across the Commonwealth - A Joint Responsibility

by David Kilgour, M.P., Elizabeth Kwasniewski
and Allan McChesney

(Published in The Parliamentarian (London, U.K.), Vol. LXXVII, No. 2, April 1996)

Following their two-year suspension of Nigeria’s membership in the Commonwealth in Auckland, the peoples and governments of the 52 members of the Commonwealth can now provide some real leadership on human rights, including their linkage to human, economic and democratic development - the kind of leadership shown in the struggle against apartheid.

Modern human rights concerns emerged after the Second World War, largely in reaction to the conduct of the Axis powers and as part of the de-colonization process. The Universal Declaration of Human Rights and International Covenants were adopted, as well as the Helsinki Accords, including the African Charter on Human and Peoples’ Rights and other regional agreements. For the first time these international instruments established procedures by which the human rights records of participating governments were subject to systematic reviews, criticism, pressure, and negotiation by outsiders. This was a major departure from the earlier dominant principle of international relations that for states to intervene in each other’s affairs violated national sovereignty.

All democratic governments now recognize the need to work for conditions under which every citizen can realize basic human rights without fear or favour. This is the implication of regional human rights conventions and institutions developed in most parts of the globe in addition to a host of UN and ILO conventions. While such initiatives express noble sentiments and enunciated international norms, they have not been very effective outside of Western Europe because most enforcement mechanisms are advisory only.

Opening the first hearing of the International Criminal Tribunal for former Yugoslavia (Nov. 1994), prosecutor Richard Goldstone noted: "In the aftermath of the Second World War...it was generally anticipated by the international community that a new era had begun, an era in which the human rights of all citizens in all countries of the world would be universally respected. It was not to be..." If anything, humankind’s inhumanity to itself has multiplied both geographically and ideologically.

To be sure, the former Soviet Union and other Marxist regimes committed some of the most flagrant, systematic rights violations in modern history. Although most of them had written constitutions and were often models of human rights rhetoric, it was the wishes of party elites that usually prevailed. The remaining few countries that still hold to the Marxist world view continue to top Amnesty International’s list of human rights abusers. Unfortunately in their rush to join the market system, some governments have also allowed respect for many human rights to be left by the wayside as well (e.g. rights in the fields of work and social assistance) and governments of all political stripes still use ethno-cultural tensions as a tool to gain power.

1990s Developments

The collapse of communism and the end of the Cold War by no means ended the catalogue of twentieth century violations of human dignity. We are no longer divided between two opposing camps facing each other in a nuclear stand-off, but now find ourselves struggling with the ugliest forms of nationalism, inter-ethnic hatred and religious rivalries released from the constraints of a bi-polar world.

"We now live in a single global civilization," said Vaclav Havel, the universally-respected President of the Czech Republic, in a 1995 address at Harvard University. His message, however, was mostly a warning about dangers that threaten humanity directly because of the new situation: "(It) is immensely fresh, young, new and fragile, and the human spirit has accepted it with dizzying alacrity, without itself changing in any essential way... And thus, while the world as a whole increasingly accepts the new habits of global civilization, another contradictory process is taking place: ancient traditions are reviving, different religions and cultures are awakening to new ways of (seeking) to give their individuality a political expression."

The new civilization, Havel continued, is essentially technological and has equipped other parts of the planet with instruments "that could effectively destroy the enlightened values which, among other things, made possible the invention of precisely these instruments." As ways of curtailing the progress of civilization simply don’t exist, the main task in the coming era for Havel is "a radical renewal of our sense of responsibility. Our conscience must catch up to our reason; otherwise we are lost."

North-South Differences

Significant differences in the perception of rights between countries of the South and North is a key issue. According to Havel, the answer is unequivocal. "In contrast with technological inventions, other products of this civilization - like democracy or the idea of human rights - are not accepted in many places in the world because they are deemed to be hostile to local traditions."

In its 1995 report, Amnesty International points out that many governments with abysmal human rights records have elaborate schemes to evade international scrutiny, mainly by blocking action at the UN, particularly at its Commission on Human Rights. When Amnesty International put before the 1994 Commission overwhelming evidence of severe and systematic human rights violations in countries such as Algeria, China (including Tibet), Indonesia and East Timor, Peru and Turkey, for instance, the Commission simply overlooked the need to act against these countries. Procedural ploys are also used by governments to evade scrutiny. The government of China, for one, was able to use a procedural motion at the 1994 Commission for the fourth time to block any resolutions on human rights violations within China/Tibet, and received only a mild procedural slap on the wrist in 1995, despite the efforts of numerous governments and NGOs to have Beijing’s record highlighted.

Some governments still question the universality of human rights, using phrases such as "cultural relativism". In 1992, a serious split arose over an agenda amendment proposed by the Western Group at the South-North Third Preparatory Committee meeting of the World Conference on Human Rights. Delegates from the North sought to address such issues as the effectiveness and enforcement of international standards, obstacles to human rights protection, and the links between development and human rights. Other governments insisted upon discussing the rights of Palestinians in Israeli-occupied territories and foreign occupation in general. That position received wide support among delegates from some developing nations, whose contention was that human rights "should not be used as instruments of political pressure, especially against the developing countries." Some Asian and Muslim governments continued this anti-universality approach at the Vienna World Conference in 1993. In contrast a meeting of Asian NGOs preparing for Vienna disagreed with their governments’ stand on cultural relativism vs universality and expressed support for universal human rights. The Vienna conference affirmed the universality of rights.

Sovereignty Shields

Some argue sincerely that respect for national sovereignty demands that national governments alone should protect rights within their own borders. When China was in danger of losing its most-favoured-nation trading status with the U.S., its government resorted to this, stressing that "China will never allow anyone to intervene in its internal affairs under any pretext." The argument, of course, has been rejected by a majority of the members of the United Nations. Sovereignty may be a norm governing international relations, but it should not be used as a shield to protect repressive regimes from global scrutiny. As Asbjorn Eide, Director of the Norwegian Institute of Human Rights, aptly observed, the concept of sovereignty is different today from what it was in previous generations. "As a result of the Charter of the United Nations, and internationally recognized human rights, it is now accepted that sovereignty resides with the people, not with the government as such - i.e., not with those who happen...to exercise governmental authority unless that authority is based on the consent of the governed. The principle of popular sovereignty is a core component in the international legal order of today."

Despite the sovereignty shibboleth of some governments, recent initiatives by the United Nations demonstrate that it is quite capable of intervening in a nation’s affairs, often in the name of protecting human rights or providing humanitarian assistance, even if the nation concerned is vehemently opposed to the intervention. The transformation of South Africa, the Gulf War, the democratization of Namibia, the UN efforts in Cambodia and Bosnia - all demonstrate that the wider international community now has an opportunity to introduce order, peace and relief where there is chaos, conflict and vast human suffering.

Rights and Trade

Hundreds of millions of people are still governed by authoritarian regimes with appalling human rights records; more than one billion remain mired in grinding poverty. The issue of reconciling trade objectives or foreign aid with human rights policies might well become a litmus test of our willingness to strengthen our overall sense of mutual responsibility within the Commonwealth. The web of connections between human rights and international trade/aid is by no means clear-cut. Some argue that trade with human rights violators maintains communication and prevents isolation - "constructive engagement" - and is thus a means towards progress in human rights primarily through seeking privately changes in the behaviour of offending governments. A less idealistic approach is one simply dictated by hope of profit.

Commercial and defence lobbies often minimize their own government’s stated desire to promote human rights. During 1994, while Washington was considering canceling China’s trade privileges, Beijing threatened to retaliate against American businesses in China. The stakes were enormous. More than 550 American companies now operate in China; U.S. firms invested $3 billion there in 1993 alone. The U.S.-China Business Council estimates that the market in China for telecommunications equipment in the next five years will be worth $30 billion, while the market for auto parts will be $29 billion over the upcoming 36 months. China has the world’s fastest-growing economy and many peoples in the world want in regardless of the regime’s treatment of its democrats, prisoners and Tibetan monks/nuns. In this context, the hospitality of successive governments in India to the Dalai Lama and other Tibetan refugees deserves high praise.

Burma Case

For many governments, trade with countries that violate human rights remains business as usual. In Burma (Myanmar), for instance, many international companies have operations, rubbing shoulders with the military junta and providing not only direct and indirect economic support, but also much-needed political legitimacy for them. In general, their response to calls for divestment from Burma is an attempt to link economic progress to improvement in human rights and democratic values. The presence of a foreign corporation in a country is seldom a neutral act. It either supports or interferes with the process for change nationals are involved in. If it interferes, it becomes a force against the people; a boycott of that company’s products is a way of saying that human rights and dignity are more important than profits. The release of one democracy leader by the SLORC regime should not be used as an excuse to pretend that real "progress" is being made.

According to a report by the Canadian NGO Project Ploughshares, Canadian businesses exported during 1994 more military equipment to developing countries than ever before. Canadian equipment and arms reportedly ended up in the hands of regimes with long records of human rights abuses. For example, Canadian companies last year sold a reported $6 million in arms to Algeria, a jurisdiction where more than 30,000 civilians have been killed in the past three years, and where extra judicial executions, torture of detainees and violent attacks on the civilian population are almost daily occurrences.

Those who advocate using trade in pursuit of human rights recognize the complexities involved, but say that when the respect for human rights falls below a universally-recognized level, economic pressure should be initiated. Ed Broadbent, President of Canada’s International Centre for Human Rights and Democratic Development, explains: "Free trade should entail civil and political freedom for those making the goods, and not just the freedom associated with the contracts of those investing the money. It is not a matter of having to choose between rights and commerce; it is a matter of putting rights on a par with commerce."

According to the official foreign policy statement, Canada in the World (1994), Canada will henceforth base its foreign policy on three elements: providing national security, promoting trade, and reflecting Canadian values. The document also adds that human rights and democracy are national values, and that its government "will make effective use of all of the influence that our economic, trading and development assistance relationships give us to promote respect for human rights."

Canada and Rights

Canada has been for many years an active participant in the promotion of human rights. Our immigration policies that have done much to build a more tolerant country have also provided refuge for many victims of oppression and have given special importance to the unification of families, but there remains room for concern. Our House of Commons Committee on Human Rights and the Status of Disabled Persons pointed out in its 1990 report: "There appears to be a serious lack of coherence and consistency between many of Canada’s aid, trade and financial assistance relationships with other countries, on the one hand, and our human rights commitments on the other. Canada, like most other human rights supporting nations, seems often to be in the position of piously condemning human rights abuses "on Sundays" and then carrying on business as usual - including mutually lucrative business - with human rights abusing countries, during the rest of the week."

Church organizations, NGOs, academics and other Canadians express deep discomfort with the lack of coherence between Canada’s trading practices and our use of diplomatic and aid instruments to support human rights objectives. While castigating a country at the United Nations for its human rights records, Canadians, say some observers, can be actively encouraging commercial activities with the same government. The Canadian Council of Churches has made its position on the trade/human rights linkage clear: "In situations where human rights violations are extreme, it is essential that government lend neither active nor passive support to private sector economic activity... The government needs to withhold the use of public funds in support of trade with such regimes."

An effective foreign policy on human rights does not have to entail drastic cuts in foreign aid budgets, severance of trade agreements or altruistic forgiveness of debt (although Canada and other countries who have forgiven some debt of the poorest nations should be applauded for doing so). Commonwealth governments as an important international community could vote against multilateral agency loans to oppressive regimes; we might as individual governments push harder against human rights violators within the UN, Francophone and Commonwealth communities generally. The Commonwealth Human Rights Initiative, an independent, non-governmental organization, expressed an opinion that member governments should draw up a prisoners’ rights charter, hold a ministerial conference on jail reform and work urgently to eliminate torture and prison overcrowding. The Commonwealth can continue supporting the development of independent national institutions (e.g. human rights commissions and ombudsofficers for member countries). A number of proposals on human rights literacy and on public and formal education in human rights were made at Commonwealth meetings in the spring (Malta) and fall (U.K.) of 1995.

World Trade Organization

On January 1, 1995 a new international body was established, the World Trade Organization, whose mandate does not include human rights provisions. However, as future regulatory changes are made, might not all Commonwealth governments pressure the organization to include the four OECD rights which more than a hundred governments have already ratified (freedom of association; right to organize and bargain collectively; prohibition of forced labour, no work-place discrimination on a gender basis)? A fifth (elimination of child labour exploitation) has been endorsed by forty governments. Positive incentives should be offered to member governments in the WTO which attempt to comply; sanctions should presumably be applied to those who refuse to respect the most basic human rights.

A Commonwealth Human Rights Dilemma

All Commonwealth governments should stress continuously that protecting and promoting human rights is a matter of common sense and of our respect for other people, for other nations and above all for human dignity. Unfortunately, for a variety of reasons, human rights have not figured prominently among the priorities that hold the Commonwealth member states together. Instead, the Commonwealth member states have focused on initiatives that helped forge consensus rather than accentuate division and dissent. The very nature of the organization, in contrast to that of the UN, is informal, based on unique methods of negotiation and reluctance toward binding legal and constitutional structures and mandates. Official ties have been reinforced by often cordial personal relations among its leaders.

Human rights themes are inherently divisive and within the Commonwealth they have often been reduced to one-dimensional issues of racial discrimination in South Africa. From the 1960s through the 1980s, the specific problem of apartheid in that country gained considerable prominence in Commonwealth and world affairs.

As the Commonwealth did not have in place a legal regime for addressing the violation of human rights, ad hoc interventionist approaches were considered the most effective reactions to regional conflicts. After years of unsuccessful diplomatic efforts to undermine apartheid and bring about a democratic system in South Africa, the Commonwealth heads of governments agreed to undertake tougher measures. Over strong resistance from Great Britain, the Commonwealth decided to impose a number of economic and trade sanctions against the white minority regime - an effective means, as it turned out, of bringing the worst and most systematic violations of human rights to an end. The ad hoc approaches that worked in promoting the advent of a non-racial democratic government in South Africa have highlighted the need for further initiatives to develop systems within the Commonwealth to ensure a more uniform and consistent respect for human rights by member states.

The Singapore Declaration of 1971 made human rights a cornerstone of the Commonwealth agenda. The member states reaffirmed that they believe "in the liberty of the individual, in equal rights for all citizens regardless of race, colour, or political belief, and in their inalienable right to participate by means of force and democratic political processes in framing the society in which they live". But the declaration was not legally binding and the implementation of its human rights provisions was entirely the responsibility of the member states.

Dramatic changes in the international agenda affected the domain of human rights. As one expert J.D. Livermore put it: "The results of the highly publicized efforts of the Carter administration in the USA, a series of egregious, visible human rights crises in a number of countries, and vocal public demands for increased, effective actions in response to greater media play for human rights were key factors in boosting human rights from the periphery of the international agenda in the early 1970s to a prominent, even central position in the foreign policies of some countries in the 1990s." The Commonwealth responded with new and more visible efforts in the human rights field: the 1989 Kuala Lumpur meeting mandated the Governmental Working Group of Experts on human rights and created a High Level Appraisal Group to assess the priorities of the Commonwealth for the 1990s; in August 1991 a group of five Commonwealth non-governmental organizations published Put Our World to Rights, a critique of Commonwealth human rights activities to put additional pressure on Commonwealth heads of governments to establish a human rights "system"; and the 1991 Harare Commonwealth Declaration and the Harare Communiqué - both strongly supportive of the promotion of democracy and human rights. In a significant shift of emphasis the Havare documents "ended a long, initial phase of ‘legitimizing’ human rights as a Commonwealth issue by placing human rights squarely on the Commonwealth work program" (Livermore).

There is a widespread consensus among Commonwealth observers that much remains to be done to implement theoretical and legal rights effectively at the level of domestic and international policy and practice. The gaping discrepancy between aspirations and the reality of their achievement arises partly from practically non-existent enforcement machinery and jointly from the reluctance of governments to subject their conduct to the discipline of human rights. Although lacking its own system for enforcement, the Commonwealth could consider applying options already successfully tried out by other bodies like the European Commission of Human Rights, the European Court of Human Rights or the Inter-American Commission of Human Rights that has the principal responsibility for the enforcement of the provisions of the Charter of the Organization of American States and the American Convention on Human Rights.

Space does not allow for a detailed analysis of these enforcement mechanisms. In brief, both the European and the Inter-American systems are generally acknowledged to be effective. Most human rights provisions are either part of the constitution and thus enjoy a superior status over other laws, or are enforceable under national as well as regional law. Where they are part of domestic law, the human rights provisions are enforceable in national courts. Although the Commonwealth states provide many impressive formal guarantees of human rights and freedoms, "in many states they remain merely paper guarantees. They have failed to influence policy or administration. They have failed to inculcate in those societies a culture of human rights or a spirit of tolerance and pluralism. The institutional machinery for securing respect for human rights is weak, reflecting the lack of a real commitment on the part of many governments to human rights." (Put Our World to Rights report.)

Tragically, it took the death of Ken Saro Wiwa of Nigeria and his eight young colleagues to jolt the Commonwealth into action in the end of 1995. In his address at the 1995 Auckland summit’s opening ceremony, the Canadian Prime Minister said: "The death sentence of Ken Saro Wiwa is an example of the type of behaviour we all want to see abolished." Nobody would argue with this proposition, but the methods of its implementation are not yet evident. As a Globe and Mail (Nov. 10, 1995) editorial put it: "Again and again the Prime Minister has insisted that the best way to improve the behaviour of foreign governments is to keep talking and trading with them. This may work if the government involved is willing to listen. Nigeria’s generals show no such tendency. These men are rapacious brutes who have made millions out of the current system and stand to make millions more. All the reason in the world will not persuade them to give up power." The loss of another two democratic governments to the military - Gambia and Sierra Leone - has made the Commonwealth realize anew that military intervention in politics is a political aberration and a derogation from the democratic development of a country.

The Nigerian issue has caused the Commonwealth to go full circle, from ad hoc actions towards South Africa to similar approaches taken by the Commonwealth Ministerial Action Group in London in December 1995. The effectiveness of this approach remains to be proven and strong punitive measures deserve serious consideration. Suspension of military cooperation with Nigeria, action to prevent new investment in that country, diplomatic obstacles placed on the travel of Nigerian leaders and their families, freezing of assets, a ban on the export of support equipment for its oil industry and/or partial trade embargoes (oil sanctions) are only some of many options available to the Commonwealth to encourage the transition from military regime to democracy in Nigeria. The late Ken Saro Wiwa and his eight friends deserve no less.