New Powers, New Approaches? Human Rights Diplomacy in the 21st Century*

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DAVID PETRASEK
David Petrasek is an Associate Professor at the Graduate School of Public and International Affairs, University of Ottawa. Formerly Special Adviser to the Secretary-General of Amnesty International, David has worked extensively on human rights, humanitarian and conflict resolution issues, including for Amnesty International, for the Office of the UN High Commissioner for Human Rights, for the International Council on Human Rights Policy, and as Director of Policy at the HD Centre. He has taught international human rights and humanitarian law courses at the Osgoode Hall Law School, the Raoul Wallenberg Institute at Lund University, Sweden, and at Oxford University. David has also worked as a consultant or adviser to several NGOs and UN agencies.

How will the emerging powers deal with human rights in their foreign policy? The question arises for an obvious reason: the world is changing. Economic and political power is shifting from North and West to South and East; liberal democracies will increasingly share or cede global power to authoritarian regimes or emerging powers that appear to prioritize sovereignty and non-interference over raising concerns about respect for human rights in other countries. The approach to date, at least of international human rights advocates, is to simply insist that as new global powers emerge, they must – no less than existing powers –use their growing influence to pressure recalcitrant regimes to respect human rights.1

However, a recent online forum devoted to the issue of emerging powers and human rights was indicative of a range of views as to whether such a strategy makes sense.2 Some of the authors approved of it, arguing that new powers ought to raise concerns about human rights abuse in other countries.3 But a number of others explained why new powers would be unlikely to do so,4 and a few suggested that, even if they were willing and able to do so, new powers might be unwise to prioritize human rights in their foreign policy.5 Though apparently contradictory, all three positions are to some degree valid.

Why? Because there are numerous ways in which human rights can be promoted in a State’s foreign policy. The most obvious and visible tactic is to make concern over human rights issues a key part of bilateral relationships, linking progress to improved trade and other relations, and, if necessary, voting in multilateral settings to express disapproval. This tactic – of public criticism and conditionality – may be used vis-à-vis some States, whereas in regard to other human rights concerns, it may be dealt with in confidence, in an ongoing dialogue.

In addition to such country-specific approaches, however, States might also promote human rights globally by seeking international attention for specific human rights themes, for example in relation to certain categories of rights-holders (for example, women, migrants, the landless), or certain types of rights (for example, freedom of association, self-determination). This might result in diplomacy aimed at strengthening international legal rules or at recognizing new types of human rights (for example, a right to peace). Further, the approach taken to both country-specific and theme-specific tactics in the United Nations may differ from those deemed appropriate in regional intergovernmental organizations.

Emerging powers will embrace some of these tactics, and avoid others –sometimes for good reasons. Decisions to do so will be based both on the nature of the tactic proposed and on the State’s relationship to the country whose human rights record is at issue. And in this regard, although it is likely that less attention will be given to country-specific tactics, the approach of the new powers to human rights in their foreign policy will, at least in some respects, resemble that of the old powers.

As argued elsewhere,6 even if it is sensible to demand that new powers prioritize human rights in their bilateral relations (and there are doubts on this point, see below), there are several reasons why such powers might decline to do so. The most obvious reason is that many emerging powers, for example, China and Russia, are themselves open to the charge of widespread human rights abuse, and thus can hardly be expected to wield it in good faith against others. Even the democracies among the rising powers, most prominently, Brazil, India and South Africa, have serious human rights problems, and this may undermine their ability to promote abroad values they claim to be committed to at home. For this reason, many commentators argue that unless they significantly improve their domestic human rights record, new powers will be unlikely (and in any case ineffective) defenders of human rights abroad.7

Yet, the apparent contradiction between a troubled domestic human rights record and the promotion of human rights abroad is hardly new. Western democracies like the United States, France and the United Kingdom have been outspoken critics of human rights abuse in other countries even as their domestic record was far from perfect. Further, countries like India, Brazil and South Africa have already been prepared to raise human rights concerns, at least vis-à-vis some countries. India, for example, has been critical of Sri Lanka and voted twice in the United Nations Human Rights Council to insist that Sri Lanka properly investigate human rights abuses that occurred in the context of the war with the Liberation Tigers of Tamil Eealam (LTTE),8 even though India itself stands accused of abuses in its wars against Kashmiri separatists and Maoist insurgents.9

The charge of hypocrisy is unlikely to prevent new powers from pointing fingers where they otherwise determine it is important to do so (much like the old powers). Whether they make that decision for their own political reasons, or out of a genuine concern for those whose rights are at risk, or some combination of the two, is a separate discussion (but, again, one that is familiar as regards the old powers). Having said that, it is certainly true that new powers will increasingly seek to shape country-specific scrutiny, at least at the UN level, in ways that privilege a non-confrontational and dialogue-driven approach. There is already evidence for this in the UN Human Rights Council, where it is increasingly difficult to muster a majority for country-specific resolutions, and where many governments oppose in principle the use of name and shame resolutions. Similarly, pressure continues on the system of “special procedures” (the rapporteurs and working groups) to adopt less confrontational tactics, such as critical reporting, and to prioritise dialogue with States.

The more fundamental problem, however, with the idea that new powers should (or could) take up human rights concerns abroad is that it assumes that condemnation and pressure by any foreign government, acting via the UN or bilaterally, is or will remain an effective means for improving respect for human rights. The actual evidence on this point is inconclusive (HAFNER-BURTON, 2008). It would seem that such pressure only really works where the country under scrutiny has something to gain (or lose) from the country or countries applying pressure (FRANKLIN, 2008). This calculation may play out very differently in an increasingly multi-polar world.

Consider the record. The strategy to use foreign policy and multilateral forums to bring pressure on regimes abusing human rights found real traction for the first time in the mid-1970s and gathered pace in the 1980s, precisely at a time when Western power was ascending, and Soviet power was declining. The countries that faced this new pressure from abroad – South and Central American dictatorships, apartheid South Africa, the communist regimes of Eastern Europe – withstood this pressure, or changed their policies, as the case may be, largely based on the degree to which they needed the trade, military or aid relationships with Western powers that were applying the pressure. In the 1990s, with United States (US) (and Western) power largely unchallenged, and more countries thus dependent on such relationships, there was arguably much more scope to promote human rights through foreign policy and the UN. Hence, there was indeed a dramatic increase in both the number of countries that came under one form or another of UN scrutiny, and the available mechanisms for doing so.

Further, let us consider the cases where pressure from foreign governments has had the most tangible impact, and conversely those cases where it has been negligible. Post Cold War, the desire to join the European Union and/or North Atlantic Treaty Organization (NATO) has without doubt motivated the countries of Eastern, Central and South-eastern Europe to pay attention to human rights concerns raised by the existing members of those alliances. Similarly, small and mid-size countries heavily dependent on aid or trade and investment have in some cases improved respect for human rights under foreign pressure. But Western criticism of human rights abuse, has had a negligible impact on large powers like China or Russia, or medium and small powers who are not dependent on the west, for example, Iran and Sudan, or Sri Lanka and Zimbabwe. Many other examples could be cited.

The moral opprobrium attached to being singled out for criticism rarely, on its own, brings about change. It is the fear that criticism, whether bilateral or via UN resolutions, may signal repercussions in other areas that provide the leverage. On this point, emerging powers will likely differ from the old powers. Developing countries have been deeply hostile to such conditionality, and in a number of cases the BRICS (Brazil, Russia, India, China and South Africa) have fought attempts to link trade or aid relationships to human rights.10 Whatever the basis for this hostility, we are likely to see greater reluctance to apply human rights conditionality in the policies of global institutions – the UN, World Bank, International Monetary Fund (IMF) – as the voting weight and influence of the emerging powers increases in these organisations.

Again, this is not to suggest there will be no willingness among the new powers to adopt public and critical stances regarding the human rights situation in other countries, and in some cases to use political, economic and aid levers to back up that stance. While there is little evidence of this at the UN level, new powers may act differently in regional and sub-regional inter-governmental bodies. For example, repressive regimes might be denied membership in regional organisations. The African Union, for example, has sought to exclude the participation of governments that take power through coup d’etat or unconstitutional means. The evidence on this point is mixed, however. In the Association of Southeast Asian Nations (ASEAN) some countries like Indonesia have, at least on occasion, championed stronger human rights criteria, whereas others have not. In the Organisation of American States (OAS), some South American countries have sought to weaken the role of the Inter-American Commission on Human Rights (IACHR).11

The general reluctance of new powers to use country-specific approaches, usually dependent on forms of conditionality for their success, may not, however, signal the absence of human rights promotion in their foreign policies. Although the name and shame tactic may be the most visible, it is by no means the only way to promote human rights abroad. Much of the diplomatic work on human rights at both UN and regional levels focuses not on specific countries but on specific themes. This work may aim at identifying policy and practises to improve the protection of specific human rights, or seek to strengthen international standards to address a human rights problem. Of course, some of this work is of a bureaucratic nature, and given the many problems with the UN, it is not always very effective, timely or relevant. Nevertheless, one of the UN’s greatest achievements in the human rights field has been the development of international standards, both hard law and soft law texts, and this process is far from complete. Even if major treaties are now adopted, the process of securing international agreement on their interpretation and the details of their implementation will continue. Just as domestic law reform in relation to rights is a continuous process, so too at the international level.

New powers often participate fully and with progressive positions in such standard-setting exercises. Latin American States, for example, were in the vanguard of efforts to adopt a new UN convention against enforced disappearances, many taking positions that favoured stricter treaty protections than those of some western countries. African nations played a key role in securing the adoption of the Rome Statute establishing the International Criminal Court (although some of them now are very critical of the Court). The migrant rights convention is championed by countries like Mexico and the Philippines even as western countries refuse to sign or ratify it. South Africa has played a prominent role in securing greater attention to and protection of the rights of lesbian, gay, bisexual and transgendered people. There are many more examples that could be cited.

This work to develop international standards might appear less virtuous, and certainly attracts less attention, but in the long run it is no less impactful than country-specific lobbying. Indeed, it may even be more so. Studies have shown the important influence of international standards in altering state behaviour, especially in democratizing countries where the global standard can be used by local civil society to push for reform in domestic law and policy (SIMMONS, 2009). This may be much more impactful than condemnatory resolutions in UN bodies, or criticism from foreign governments.

Viewed this way, a more complex picture emerges regarding human rights in the foreign policy of emerging powers, one that suggests that even though there may be less of the ‘old’ tactics of public criticism and conditionality, other tactics, including dialogue-driven approaches and thematic-specific standard-setting may figure prominently. If true, this presents both risks and opportunities for the goal of maintaining and improving an effective international regime for the protection of human rights. A decline in country-specific attention may pose risks in situations where abuses are being committed on a mass scale and urgent enforcement action is required, including by the Security Council. On the other hand, the opportunities to secure human rights reforms through South-South dialogue or through a more effective Universal Periodic Review (UPR) process have barely been tested. The challenge might well be to focus narrowly on securing the support of new powers to take country-specific action in those extreme cases, and otherwise accepting that in a changed world the public criticism and conditionality approach has little future.

Finally, it must be pointed out that although it is important, the question of human rights diplomacy in a changed world order will hardly be determinative for the future of human rights. The rise of new powers is only one of the many momentous global shifts now underway. Dramatic gains in education, including at the secondary and post-secondary level, coupled with the exponential growth of urban populations and the diffusion of mobile access to the internet (to 5 billion people by 2020) all point to a newly empowered and growing middle-class in dozens of countries. Prominent among these will be the emerging powers: China and India, of course, but also Brazil, Indonesia, Mexico, Nigeria, South Africa, Turkey and others. This newly empowered middle-class will be a crucial engine for change, for good or ill. The approach this group takes to human rights is likely to be much more important to global human rights struggles than the foreign policy of their governments.