The search for international human rights and justice: Coming to terms with the new global realities

Human Rights Quarterly

Volumn 23, Issue 2, 2001, Pages 370-401

  Monshipouri, Mahmood ^b   Welch, Claude E ^b  

^a QUINNIPIAC UNIVERSITY   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INTERNATIONAL AGREEMENT; LEGISLATION; SOCIAL JUSTICE;

EID: 0034971385     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2001.0020     Document Type: Article

References (149)

1. WILLIAM H. MEYER, HUMAN RIGHTS AND INTERNATIONAL POLITICAL ECONOMY IN THIRD WORLD NATIONS: MULTINATIONAL CORPORATIONS, FOREIGN AID, AND REPRESSION 215-16 (1998).
2. LYNN H. MILLER, GLOBAL ORDER: VALUES AND POWER IN INTERNATIONAL POLITICS 194 (4th ed. 1998).
3. It should be noted that there were regional standards in Europe, which were enforceable, and in the Americas, which were declaratory, prior to the ratification and implementation of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Africa's regional standards, however, are recent, and Asia still does not have a regional agreement. Great Britain decided its jurisdiction rested under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with its universal jurisdiction, not the European Convention or ICCPR.
4. A Senegalese court on 4 February 2000, indicted the exiled former dictator of Chad, Hissene Habre on the charges that he committed egregious and systematic abuses of human rights during his rule (1982-1990). Many local and international NGOs, such as Human Rights Watch, have helped in mustering evidence that shows the Habre administration had killed 40,000 people and tortured 200,000. Habre might be put on trial either in Chad or sent back to Senegal to face charges there.
5. MARYANN K. CUSIMANO, BEYOND SOVEREIGNTY: ISSUES FOR A GLOBAL AGENDA 23 (2000).
6. Id.
7. RICHARD FALK, PREDATORY GLOBALIZATION: A CRITIQUE 7 (1999).
8. Bilahari Kausikan, A Universal Definition of Human Rights Ignores Cultural Diversity, in HUMAN RIGHTS: OPPOSING VIEWPOINTS 21-24, at 23-24 (Mary E. Williams ed., 1998).
9. KURT MILLS, HUMAN RIGHTS IN THE EMERGING GLOBAL ORDER: A NEW SOVEREIGNTY? 187 (1998). Mills argues that the concept of state sovereignty, which has for a long time been viewed as the basic constitutive element of the international system, now faces colossal challenges on several fronts related to human rights and other humanitarian concerns, including refugees, migration, and intervention. Recognizing the state as a socially constructed entity, Mills points to the three constructive elements for claims to sovereignty - upholding human rights, popular sovereignty, and self-determination. He maintains that it is only when these three components of the new sovereignty are present that a state can legitimately assume a certain kind of power and authority.
10. Id. at 194-95.
11. See Jack Donnelly, Unfinished Business, 31 POL. SCI. & POLITICS 530, 532 (1998); see also David P. Forsythe, Human Rights Fifty Years After the Universal Declaration, 31 POL. SCI. & POLITICS 507 (1998).
12. See Jack Donnelly, Unfinished Business, 31 POL. SCI. & POLITICS 530, 532 (1998); see also David P. Forsythe, Human Rights Fifty Years After the Universal Declaration, 31 POL. SCI. & POLITICS 507 (1998).
13. Jack Donnelly, Human Rights: A New Standard of Civilization? 74 INTL AFF. 1, 15-16 (1998).
14. See Document: Statement of the International People's Tribunal on Human Rights and the Environment: Sustainable Development in the Context of Globalization, 23 ALTERNATIVE 109-47, at 118 (Jan.-Mar. 1998).
15. Theo Van Boven, "Political" and "Legal" Control Mechanisms: Their Competition and Coexistence, in HUMAN RIGHTS IN PERSPECTIVE: A GLOBAL ASSESSMENT 36, 38 (Asbjørn Eide & Bernt Hagtvet eds., 1992).
16. Id. at 47.
17. Id. at 33 (for comments by Vladimir A. Kartashkin).
18. See Howard LaFranchi, Latin America's New Concerns over "Colonial" Interference, CHRISTIAN SCIENCE MONITOR, 10 Nov. 1999, at 7.
19. Id.
20. FALK, supra note 7, at 1.
21. Id.
22. Id.
23. Anders Åslund, Russia's Collapse, 78 FOREIGN AFF., Sept.-Oct. 1999, at 64.
24. William Ptaff, The Global Cost of US Hubris, BOSTON GLOBE, 17 Jan. 2000, at A15.
25. Id.
26. Id.
27. John Mueller & Karl Mueller, Sanctions of Mass Destruction, 78 FOREIGN AFF., May/June 1999 at 43. See also Joy Gordon, A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions, 13 ETHICS & INT'L AFF. 123 (1999). Gordon argues that sanctions in Iraq have become a form of violence that entails the greatest harm to those who are the most vulnerable and disenfranchised from power.
28. John Mueller & Karl Mueller, Sanctions of Mass Destruction, 78 FOREIGN AFF., May/June 1999 at 43. See also Joy Gordon, A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions, 13 ETHICS & INT'L AFF. 123 (1999). Gordon argues that sanctions in Iraq have become a form of violence that entails the greatest harm to those who are the most vulnerable and disenfranchised from power.
29. Gordon supra note 26, at 124; see also Scott Peterson, Is the West too Quick to Sanction? CHRISTIAN SCIENCE MONITOR, 3 Apr. 2000, at 1, 10 (about Hans Von Sponeck, the UN humanitarian coordinator for Iraq, who quit in late March 2000, in disagreement over the continuation of sanctions on Iraq).
30. Gordon supra note 26, at 124; see also Scott Peterson, Is the West too Quick to Sanction? CHRISTIAN SCIENCE MONITOR, 3 Apr. 2000, at 1, 10 (about Hans Von Sponeck, the UN humanitarian coordinator for Iraq, who quit in late March 2000, in disagreement over the continuation of sanctions on Iraq).
31. Gordon, supra note 26, at 124.
32. Gordon, supra note 26, at 141-42.
33. Michael J. Smith, Humanitarian Intervention: An Overview of the Ethical Issues, 12 ETHICS & INT'L AFF. 63, 79 (1998).
34. Id. at 77.
35. CORINNE DUFKA/HUMAN RIGHTS WATCH, HUMAN RIGHTS WATCH WORLD REPORT 2000: EVENTS OF 1999 xiii-xxvi, at xix (1999).
36. Id.
37. J. Bryan Hehir, Military Intervention and National Sovereignty: Recasting the Relationship, in HARD CHOICES: MORAL DILEMMAS IN HUMANITARIAN INTERVENTION 29, 30 (Jonathan Moore ed., 1998).
38. Id. at 44.
39. Id. at 43.
40. Michael Mandelbaum, A Perfect Failure: NATO's War Against Yugoslavia, 78 FOREIGN AFF., Sept./Oct. 1999, at 6.
41. Id.
42. Id.
43. Id.
44. Tom J. Farer, Restraining the Barbarians: Can International Criminal Law Help? 22 HUM. RTS. Q. 90-117, at 114 (2000).
45. Id.
46. Id.
47. Richard Falk, Kosovo, World Order, and the Future of International Law, 93 AM. J. INT'L L. 847 (1999).
48. Id. at 855.
49. Louis Henkin, Kosovo and the Law of Humanitarian Intervention, 93 AM. J. INT'L L. 824 (1999).
50. Jonathan I. Charney, Anticipatory Humanitarian Intervention in Kosovo, 93 AM. J. INT'L L. 834, 838 (1999).
51. Michael Ignatieff, A Bungling U.N. Undermines Itself, N.Y. TIMES, 15 May 2000, at A19.
52. Id.
53. Pane Perlez, A Doomed Peace: Missteps and a Weak Plan Marred Effort for Sierra Leone, N.Y. TIMES, 10 May 2000, at A10.
54. Alan J. Kuperman, Rwanda in Retrospect, 79 FOREIGN AFF. 94-118, at 108, 110 (2000).
55. Id.
56. Id. at 117.
57. N.Y. TIMES, 27 Feb. 2000, at 1A & 16A.
58. Joseph S. Nye, Jr., Redefining the National Interest, 78 FOREIGN AFF. 22-35, at 31 (1999).
59. Michael R. Gordon, The Grunts of Grozny, N.Y. TIMES MAGAZINE, 27 Feb. 2000, at 48.
60. HUMAN RIGHTS WATCH WORLD REPORT 2000, supra note 32, at xxiii.
61. See Document, supra note 13, at 116-19.
62. See review of KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY (1999), by D.W. Miller, Citing Research and Morality, XLV CHRON. HIGHER ED. 7 May 1999, at A21-A22; see A21.
63. See review of KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY (1999), by D.W. Miller, Citing Research and Morality, XLV CHRON. HIGHER ED. 7 May 1999, at A21-A22; see A21.
64. Id.
65. Jay Mazur, Labor's New Internationalism, 79 FOREIGN AFF. 79-83, at 80 (2000).
66. Id. at 81.
67. Jagdish Bhagwati, The Global Age: From a Skeptical South to a Fearful North, 20 WORLD ECON. 259-83; see 277 (1997).
68. Id. at 278-79.
69. Mahmood Monshipouri & Edward Lorenz, Ethical Dilemmas of Globalization and Liberalization, presented at the 1998 International Studies Association meeting, Minneapolis, MN, 18-21 Mar. 1998.
70. Mahmood Monshipouri, State Prerogatives, Civil Society, and Liberalization: The Paradoxes of the Late Twentieth Century in the Third World, 11 ETHICS & INT'L AFF. 233-51, at 240-42 (1997).
71. Rhoda E. Howard, Human Rights and the Culture Wars: Globalization and the Universality of Human Rights, LIII INT'L J. 94-112 (Winter 1997-1998).
72. Andrew J. Nathan, China: Getting Human Rights Right, 20 WASH. Q. 135-51, at 138-40 (1997).
73. Id. at 144.
74. Juan J. Linz, Types of Political Regimes and Respect for Human Rights: Historical and Cross-National Perspectives, in HUMAN RIGHTS IN PERSPECTIVE 177, 188 (Asbjørn Eide & Bernt Hagtvet eds., 1992).
75. Robert A. Dahl, Democracy and Human Rights Under Different Conditions, in HUMAN RIGHTS IN PERSPECTIVE, supra note 70, at 235-57, see 236.
76. FALK, supra note 7, at 101-02.
77. DAVID GILLIES, BETWEEN PRINCIPLE AND PRACTICE: HUMAN RIGHTS IN NORTH-SOUTH RELATIONS 34 (1996).
78. HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 5-6 (1980).
79. Id. at 19. Some human rights scholars, such as Jack Donnelly, have argued that it is difficult to see how such a notion of "basic rights" provides any theoretical guidance. All human rights, Donnelly argues, "are 'basic rights' in the fundamental sense that systematic violations of any human rights preclude realizing a life of full human dignity - that is, prevent one from enjoying the minimum conditions necessary for a life worthy of a human being." See JACK DONNELLY, UNIVERSAL HUMAN RIGHTS: IN THEORY AND PRACTICE 40-41 (1989).
80. Id. at 43.
81. Wole Soyinka, Every Dictator's Nightmare, N.Y. TIMES, Apr. 18, 1999, § 6, at 90.
82. See Peter L. Berger's argument in George Weigel, Are Human Rights Still Universal? 99 COMMENTARY 41-45 (1995).
83. Linz, supra note 70, at 206.
84. Id. at 208.
85. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at art. 5, ¶ 2, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985). Art. 5, ¶ 2 of the Torture Convention reads: Each state party shall likewise take such measures as may be necessary to establish its jurisdiction over such offenses in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the State mentioned in paragraph I of this article.
86. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at art. 5, ¶ 2, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985). Art. 5, ¶ 2 of the Torture Convention reads: Each state party shall likewise take such measures as may be necessary to establish its jurisdiction over such offenses in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the State mentioned in paragraph I of this article.
87. Paul G. Magnarella, Universal Jurisdiction and Universal Human Rights: A Global Progression, 12 J. THIRD WORLD STUD. 159, 161 (1995).
88. Id. at 169.
89. Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, in HUMAN RIGHTS LAW 3, 28 (Philip Alston ed., 1996).
90. Marc Weller, On the hazards of foreign travel for dictators and other international criminals, 75 INT'L AFF. 599, 606 (1999).
91. Peter Ford, NATO's spotty record in Bosnia, CHRISTIAN SCIENCE MONITOR 1 Mar. 2000, at 6.
92. Id.
93. MILLER, supra note 2, at 210.
94. HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 26 (Carla Hesse & Robert Post eds., 1999).
95. See The International Diplomatic Conference held between 15 June and 17 July 1998, in Rome, Italy, to finalize a treaty establishing a permanent International Criminal Court (ICC) was the first court since the Nuremberg trials to prosecute individuals, not countries, accused of crimes against humanity, such as genocide and systematic and widespread torture and rape. See U.N. DOC A/CONF. 183/9*.
96. For a cogent argument on the role of the nongovernmental organizations in creating the International Criminal Court, see Ved P. Nanda, The Establishment of a Permanent International Criminal Court: Challenges Ahead, 20 HUM. RTS. Q. 413, 427-28.
97. Id. at 419.
98. Id.
99. Kenneth Jost, Human Rights, in GLOBAL ISSUES: SELECTIONS FROM THE CQ RESEARCHER 205-23, at 221 (2001).
100. David P. Forsythe, The New International Criminal Court, 16 NETH. Q. HUM. RTS. 259, 260.
101. See U.S. Veto of Treaty Leaves Criminal Court in Limbo, 20 U.N. OBSERVER AND INTL. REPORT 1 (1998).
102. Mark Ensalaco, Truth Commissions for Chile and El Salvador: A Report and Assessment, 16 HUM. RTS. Q. 656, 663.
103. Priscilla B. Hayner, Fifteen Truth Commissions - 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597, 600.
104. Id. at 653.
105. Id. at 654.
106. Id. at 655.
107. Id.
108. Jeremy Sarkin, The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda, 21 HUM. RTS. Q. 767-823, at 821 (1999).
109. David Rieff, The Precarious Triumph of Human Rights, N.Y. TIMES, Aug. 8, 1999, sec. 6 (Magazine), at 36, 39-40.
110. Id. at 39.
111. See Dennis Jett, UN Alone Can't Save Sierra Leone, THE CHRISTIAN SCIENCE MONITOR, May 17, 2000, at 10. Dennis Jett, who served as US ambassador to Mozambique and Peru, is an adviser at The Carter Center, at Emory University.
112. N.Y. TIMES, 18 May 2000, at A6.
113. Justin Brown, Why Africa's Wars Confound the US, THE CHRISTIAN SCIENCE MONITOR, May 17, 2000, at 3.
114. Id.
115. JOSEPH S. NYE, JR., UNDERSTANDING INTERNATIONAL CONFLICTS: AN INTRODUCTION TO THEORY AND HISTORY 222 (3d ed. 2000).
116. Rieff, supra note 104, at 40.
117. See HUMAN RIGHTS IN POLITICAL TRANSITIONS, supra note 89, at 18-21.
118. Warren Hoge, Serious Charges Bar Immunity for Chilean, N.Y. TIMES, Nov. 26, 1998, A1, A8.
119. See Marlise Simons, Pinochet Case Spurring Debate on International Laws, N.Y. TIMES, Nov. 22, 1998, at A16. Simons writes that Operation Condor is the code name for tracking down "leftists, Communists, and Marxists in South America. Chile, Argentina, Bolivia, Paraguay, Uruguay, and Brazil are members. Special Condor teams equipped with "false documents" can travel anywhere to "carry out sanctions up to assassination." Its architect was allegedly Colonel Manuel Contreras, the former chief of DINA, a secret police unit that reported exclusively to and received orders directly from General Pinochet. The evidence from the National Security Archives shows that US defense and intelligence officials maintained regular contacts with DINA. See also Jonathan S. Landay, Why US is Quiet on Pinochet Case, THE CHRISTIAN SCIENCE MONITOR, Dec. 4, 1998, at 4-5.
120. See Marlise Simons, Pinochet Case Spurring Debate on International Laws, N.Y. TIMES, Nov. 22, 1998, at A16. Simons writes that Operation Condor is the code name for tracking down "leftists, Communists, and Marxists in South America. Chile, Argentina, Bolivia, Paraguay, Uruguay, and Brazil are members. Special Condor teams equipped with "false documents" can travel anywhere to "carry out sanctions up to assassination." Its architect was allegedly Colonel Manuel Contreras, the former chief of DINA, a secret police unit that reported exclusively to and received orders directly from General Pinochet. The evidence from the National Security Archives shows that US defense and intelligence officials maintained regular contacts with DINA. See also Jonathan S. Landay, Why US is Quiet on Pinochet Case, THE CHRISTIAN SCIENCE MONITOR, Dec. 4, 1998, at 4-5.
121. Id. at A16.
122. Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH. L. REV. 2129, 2141 (1999).
123. Warren Hoge, Briton Won't Free Pinochet, Ruling the Case Can Proceed, N.Y. TIMES, 10 Dec. 1998, at A3.
124. Id.
125. See Michael Ceaser, Bolivia Abuzz Over Its 'Pinochet Twin/ CHRISTIAN SCIENCE MONITOR, 3 Nov. 1998, at 6.
126. Spain's Judge Garzon questioned the issue of being "medically unfit to stand trial," arguing that "physical impairment and old age would not constitute sufficient grounds for exclusion from trial. He cited the cases of Klaus Barbie, a Gestapo official in occupied France, and the French Nazi collaborator Maurice Papon, who were tried and convicted of war crimes despite their advanced ages and physical ailments." Al Goodman, Doubting Pinochet Is Unfit, Spaniard Calls for 2d Opinion, N.Y. TIMES, 15 Jan. 2000, at A8.
127. Clifford Krauss, Pinochet, at Home in Chile: A Real Nowhere Man, N.Y. TIMES, 5 Mar. 2000, at A12.
128. Id.
129. Warren Hoge, Pinochet Is Ruled Unfit for a Trial and May Be Freed, N.Y. TIMES, 12 Jan. 2000, at 1A.
130. Karl Vick, African Eyes Opened by Ex-Leader's Indictment; Where Impunity Prevails, Chadian's Case is a First, WASH. POST, 5 Feb. 2000, at A13.
131. Editors, An African Pinochet, N.Y. TIMES, 11 Feb. 2000, at A30.
132. Paul W. Kahn, On Pinochet, 24 BOSTON REV. 18-23, at 19 (Feb.-Mar. 1999).
133. Charles Lane, Busted, THE NEW REPUBLIC, 9 Nov. 1998, at 7, 49.
134. Id.
135. Alfred P. Rubin, Pinning Guilt on Pinochet, CHRISTIAN SCIENCE MON., 2 Dec. 1998, at 9.
136. Id.
137. Id.
138. Steven R. Ratner, International Law: The Trials of Global Norms, 110 FOREIGN POL'Y, 65, 67 (1998).
139. Id. at 68.
140. Id. at 71.
141. Warren Hoge, After 16 Months of House Arrest, Pinochet Quits England, N.Y. TIMES, 3 Mar. 2000, at A6.
142. For an interesting perspective on the tension between sovereignty and rights, see a paper by Paul W. Kahn, American Hegemony and International Law, Draft: 2/25/2000. Kahn argues that scholars cannot resolve this tension. They are "in no position to claim the ideology of rights is more compelling than that of popular sovereignty. It may indeed be true that rights are safer than sovereignty, but safety is only one value." Kahn continues, "Indeed, safety may not be an ultimate value in the way that sovereignty has been for many communities, including our own." See id. at 27-28. Elsewhere Kahn argues that the "construction of international legal norms remains a project of elite, not an expression of individual and community self-formation." For most citizens, he adds, the connection "to international law is mediated through the political community that is constitutive of political identity: the nation-state." See also Kahn, supra note 126, at 18-23, at 21.
143. For an interesting perspective on the tension between sovereignty and rights, see a paper by Paul W. Kahn, American Hegemony and International Law, Draft: 2/25/2000. Kahn argues that scholars cannot resolve this tension. They are "in no position to claim the ideology of rights is more compelling than that of popular sovereignty. It may indeed be true that rights are safer than sovereignty, but safety is only one value." Kahn continues, "Indeed, safety may not be an ultimate value in the way that sovereignty has been for many communities, including our own." See id. at 27-28. Elsewhere Kahn argues that the "construction of international legal norms remains a project of elite, not an expression of individual and community self-formation." For most citizens, he adds, the connection "to international law is mediated through the political community that is constitutive of political identity: the nation-state." See also Kahn, supra note 126, at 18-23, at 21.
144. Michael J. Glennon, The New Interventionism: The Search for a Just International Law, 78 FOREIGN AFF. 2-7, at 7 (1999).
145. See HUMAN RIGHTS IN POLITICAL TRANSITIONS, supra note 89, at 29.
146. A.H. ROBERTSON & J.G. MERRILLS, HUMAN RIGHTS IN THE WORLD: AN INTRODUCTION TO THE STUDY OF THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 342 (4th ed. 1996).
147. Lyn S. Graybill, To Punish or Pardon: A Comparison of the International Criminal Tribunal for Rwanda (ICTR) and the South Africa Truth and Reconciliation Commission (SATRC), a paper presented at the annual meetings of the International Studies Association, Los Angeles, California, 16 Mar. 2000.
148. DAVID P. FORSYTHE, HUMAN RIGHTS IN INTERNATIONAL RELATIONS 107 (2000).
149. For a particularly thoughtful reference on this argument, see DAVID P. FORSYTHE, HUMAN RIGHTS AND PEACE: INTERNATIONAL AND NATIONAL DIMENSIONS (1993).