Bridging the Gap Between Ideals and Practice

Otago Foreign Policy School

To invite someone who squandered several delicious months of post-graduate study on a thesis in political theory to talk about human rights is to risk a lugubrious treatise on the nature of the human condition. I am determined to avoid that. I'm not a rights theorist; I'm not well read on the subject of rights. Not withstanding that, I thought I should expose myself to a sample drawn from the voluminous literature on human rights that exists if only to check that its charms were resistible. Luckily for you, I was quickly anaesthetised by the towering intellectualism that dominates the field. I don't say that in a disparaging way. Intellectual discourse - even in a thoroughly explored and well worn groove - is one important way of constantly rethinking (and transmitting to successive generations) difficult and uncomfortable issues.

The indeterminate nature of so much moral philosophical debate need not be symptom of an exhausted and arid intellectualism that has transmuted the real agonies of flesh and blood dilemmas into abstract games. After all, the practical issues human rights problems raise frequently invoke the reconciliation of incommensurable values. We confront much more frequently than we may care to admit, tragic consequences and less than heroic options. Wrestling with the moral consequences of our constrained options and inadequate choices is a sober antidote to complacency and moral smugness. But it is important to know when to spurn the seductive attractions of intellectual debate and embrace the clammy realities of real political power being exercised and real anguish inflicted.

As I read my way through the texts, I felt myself intuitively endorsing the view that, whether or not you agree with the religious or natural law foundations of much rights discourse, it is all but impossible to uncouple the idea of human rights from claims about the concept of what it means to be a human being - claims that transcend specific historical institutions, traditions, legal systems and forms of government. I found myself responding to the blandishments of cultural relativism by pleading that respect for differences in context does not deny some recognisably universal traits that people everywhere seem to express. And to erect, as a backstop, the culturally and morally loaded argument that if we cannot demonstrate empirically, a universal human nature, then we need to construct one because modernity is forcing us altogether in the same holding pen.

But, as I say, I am determined not to step into this territory because, notwithstanding my respect for the interlocutors in this debate, metaphysical chatter is silenced when we come face to face with the human tragedies that continue to unfold, notwithstanding the high-flown declarations of rights that abound. It would be hard to put it more directly than the present Secretary-General of the United Nations, Kofi Annan, who had this to say of his own African continent earlier this year:

"Do not African mothers weep when their sons and daughters are killed or tortured by agents of oppressive rule? Do not African fathers suffer when their children are unjustly sent to gaol? Is not Africa as a whole the poorer when just one of its voices is silenced? Human rights... are African rights. They are Asian rights; they are European rights; they are American rights."
The Secretary-General is right in the only sense that really matters - a human one. But his verdict is also the only practicable one in a world which is steadily globalising. Whether we like it or not, globalisation is exposing the world's peoples and cultures to one another. Local actions have become global actions, so that arguments rooted in cultural particularism are exposed to the arc lights of common human scrutiny. Strangeness, once exposed to view, is strange no more. Everything is transformed by everything else. All we're left with is a debate about boundaries.

Now we may not be able to define the boundaries of the rights that are asserted. But that does not prevent us from recognising cruelty when we see it. And it certainly shouldn't silence us in the face of manifest abuse. Those, I trust, are issues on which this audience at least is of one mind. In the final analysis it seems to me that to work through the diversities of cultural, philosophical and economic strata is ultimately to uncover a bedrock of shared values familiar to us all, regardless of origin. It was of course this very commonality that was reaffirmed in 1993 by 171 states at the Vienna Conference which declared that the Universal nature of human rights is beyond question. I should like to turn now to more prosaic - though no less contentious - matters of international bureaucracy and negotiation.

Viewed from a New Zealand perspective, it has not seemed especially useful to conceive of the international human rights debate in terms of contending schools of values separated by cultural lines drawn in the sand. Certainly one effect of the polemical flurry that accompanied the Asian v. Western values debate was to delay the development of the cooperative regional approaches to human rights capacity building that have now begun to emerge, most recently at this year's regional human rights workshop which was held in Teheran and chaired by the UN High Commissioner for Human Rights, Mary Robinson of Ireland.

New Zealand's concern is to look beyond the generalities of culturally-based debates on human rights issues. As New Zealanders we seek to understand and learn from the different perspectives and approaches arising from cultural diversity in our own society. We believe the best way to make progress is through dialogue, seeking to extend common ground so enhancing our ability to work together. This is the essence of New Zealand's approach. We have a determination to try to make a difference.

From the beginning New Zealand saw the importance of establishing human rights as a legitimate concern between nations, as well as the potential of the UN as a mechanism for advancing the promotion and protection of universal human rights. At the Paris session of the UN General Assembly in 1948 New Zealand took an active part in the three month long debate which ultimately gave rise to the Universal Declaration. It is worth recalling that the original Dumbarton Oaks draft of the UN Charter was virtually silent on the issue of human rights. New Zealanders can justifiably be proud that it was the New Zealand delegation which proposed the inclusion, in the chapter on principles, of the words "all members of the organisation undertake to preserve, protect and promote human rights and fundamental freedoms". This single contribution led in turn to the provision in the UN Charter which enshrined human rights as a legitimate concern between nations so establishing a basis for the UN to concern itself with failures and abuses of human rights in individual member countries. These words carried through into the text of the Universal Declaration becoming the foundation for everything the UN does in relation to human rights. Dr Colin Aikman, who is here today, was a member of that New Zealand delegation, fifty-three years ago.

Proceeding from the Charter, and subsequently the Universal Declaration of Human Rights, new standards developed by member states have built a legal and moral framework describing fundamental human rights standards. New instruments are very much the product of negotiation, discussion and compromise among Member States. It is difficult and frustrating work and, more often than not, the results are far from revolutionary. But incrementally these new standards have clarified and extended the commitment of the international community to the promotion and protection of human rights.

New Zealand plays an active role. We participate in the annual sessions of the Commission on Human Rights in Geneva and the Third Committee of the UN General Assembly in New York and we have maintained a close involvement with the international effort to improve human rights standards.

But this is only part of the story. The gap between human rights ideals and practice remains obvious to all. In Mary Robinson's words, "the impact of human rights mechanisms, of 30 years of multi-billion dollar development programmes, of global rhetoric at numerous world conferences, has been totally and disappointingly disproportionate to the efforts invested." This is a bleak analysis by any measure. Yet Mary Robinson went on: "In spite of this the message of human rights is a message of hope: a message that things can change: that individuals and the United Nations can have an impact."

Clearly, though, there are no quick fixes. But states, NGO's and individuals can make a difference and have an impact. But doing so requires an emphasis on implementing and upholding existing standards, as much as on developing new ones.

So how might New Zealand respond to this challenge? While the solutions are not always clear, New Zealand has focussed on two areas. Within the UN system, we seek to be a constructive and thoughtful player both in UN programmes and in the work of making the organisation more effective and responsive. And outside that framework we have developed the ability to initiate and become involved in a range of practical capacity-building programmes.

A few observations now on the UN. Fifty-three years on, the UN faces real difficulties. Increasingly cumbersome, and burdened by debt, in some areas it now struggles to maintain an effective presence. The reform package identified and begun by the Secretary-General over the past year is timely. An improved human rights effort is not an optional extra, but reflects the basic interests of all member states. In Kofi Annan's words, "Developments in the present decade have underscored that human rights are inherent to the promotion of peace, security, economic prosperity and social equity. Governments increasingly recognise that respect for human rights, including the rights of women, is a pre-condition for political stability and socio-economic progress."

The recent merger of the UN Centre for Human Rights with the Office of the High Commissioner for Human Rights is a step in the right direction too, providing a solid institutional basis for the management of the UN's human rights effort. Mary Robinson is reforming her Office's work programme and operations, setting clearer priorities, and lifting staff quality. We welcome and endorse her efforts.

Elsewhere in the UN, attention has focussed on the bodies responsible for monitoring the performance of states party to human rights treaties. In conjunction with the Governments of Australia and Canada, New Zealand recently reaffirmed support for the United Nations' human rights treaty bodies, noting that they are an indispensable part of the international human rights system. But we also provided comments on ways in which the system could be improved.

For all its virtues, the treaty body system has deep problems. In a thoughtful report last year, Professor Philip Alston of Australia, the Chair of the Committee on Economic, Social and Cultural Rights, looked closely at the system by which states report regularly and in detail to UN Committees overseeing implementation of human rights treaties. His analysis went so far as to question the sustainability of the current system.

The Alston Report drew attention to numerous ways in which the human rights monitoring and review procedure is not working. Many states lack the capacity to fulfil the requirements placed on them by the reporting process. More than two-thirds of all States parties have fallen behind in submitting reports. Figures from February of this year reveal that nearly 1200 reports are overdue.

Looking at this more closely, a troubling pattern emerges. It is evident that the burden of reporting falls particularly heavily on small or developing countries. Reporting is a costly process that places heavy demands on administrative resources. The burden of reporting may even in some cases amount to a disincentive to ratification. We agree with Alston's recommendation that special support needs to be given to small states to assist them in meeting the demands of treaty body reporting. But that is only a part of the problem.

On the other side of the coin, the treaty bodies themselves appear ill-equipped and under-resourced to deal with the burden of the reports they do receive. By way of illustration, countries can wait as long as three years after submission before their report is examined by the relevant Committee. By then that country's subsequent report may well be due. And so the problem compounds itself with a growing backlog. The smooth system of regular reporting and dialogue between committees and states that was originally envisaged has become a mire of overdue, irregular and out of date reports.

Somewhat ironically, this build-up is also - it must be said - a result of the successful drive to increase ratification of core human rights instruments. For example, the Convention on the Rights of the Child has achieved near universal ratification. But the end result is a serious weakening of the ability of Committees to conduct effective monitoring in crucial areas of human rights, including torture, racial discrimination and women's issues, simply because of overload.

To be quite frank, the treaty body mechanism is currently incapable of fulfilling the role envisaged for it. Should the international community's stated goal of universal ratification of the human rights treaties ever be neared, or if all states actually reported as required, we would find the Human Rights Committee and other similar bodies collapsing under the strain. In fact, the Alston Report estimated that if every state party with a report overdue under either of the Covenants were to submit that report tomorrow, the last to be received could not be considered, on the basis of existing arrangements, before the year 2003. Alston concluded that the present system functions only because of the large-scale delinquency of states which do not report at all, or report long after the due date. As he put it, this is "hardly a satisfactory foundation upon which to build an effective and efficient monitoring system". He added that large-scale non-reporting undermines the system as a whole and leads to a situation in which many States are effectively rewarded for violating their obligations while others are penalised for complying. It is therefore imperative that the current system of reporting be reformed.

In commenting on the Alston report, New Zealand supported a number of measures aimed at improving and streamlining the reporting system. These included a thorough system of cross-referencing reports under different instruments, harmonising report submission dates for States party to a number of instruments, and the consolidation of information common to two or more reports. We also supported proposals to encourage a more useful dialogue between states and treaty bodies, and to ensure that reports are more succinct.

New Zealand also supports, as a matter of priority, consideration of the longer-term reforms proposed in the Alston report. These included consolidation of reports under a number of instruments, replacement of comprehensive periodic reports by follow-up reports covering new developments and issues identified by the examining Committee, more flexible amendment procedures for procedural elements of the six treaties, and the establishment of a small expert group to consider the possible consolidation of the treaty bodies.

Another instance where the machinery needs improvement to fulfil its envisaged role is the system of individual communications under the Optional Protocol to the Civil and Political Covenant. Under this system, individuals can lay complaints against states which have ratified the Covenant, if the individuals believe their civil and political rights have been violated, and when all domestic remedies have been exhausted.

By 1996, the Human Rights Committee had received around 700 complaints against 51 countries. Canada, the Netherlands and France were among the five countries generating the greatest number of complaints. I cannot help wondering whether Canada, France and the Netherlands are really among the worst human rights violators in the world - a world where we continue to witness genocide and mass rape, and where torture, arbitrary executions, imprisonment and disappearances are commonplace. This begs the question - is the system hitting the critical targets?

Certainly there is room for reflection as to whether the Optional Protocol system has lived up to expectations. New Zealand, for its part, has had eight complaints filed against it since ratifying the Optional Protocol in 1989. The Human Rights Committee has found three of these to be inadmissible and one was withdrawn by the author. Two of the four remaining communications which await consideration are complaints by groups which claim that their collective rights under the Covenant have been breached.

These complaints exemplify a growing trend for communications to deal with issues which impact on important matters of public policy. The willingness of the Human Rights Committee to consider complaints by groups has considerably broadened the scope of matters before the Committee beyond those for which it was designed. It has also taken steps to elevate the status of its 'views' and 'decisions' to those of a judicial body. Yet the Committee is simply not equipped for this kind of task.

The Human Rights Committee is a body of eighteen elected experts who meet for just three weeks, three times a year. During this time it must deal with both periodic reports and individual complaints. Its members are part-time and their election is often influenced by explicitly political factors as much as by the calibre and skills of the candidates. Yet the Committee increasingly finds itself being asked to rule on complex domestic policy issues about which it has little background knowledge or expertise.

Can it be said that persons making complaints or the states concerned are being properly served by a Committee which can take a year simply to respond to a communication?

It is probably fair to say that in human rights, as in other areas, the United Nations system is intended to act as a valuable place of last resort, a safety net of collective human rights security for those in need. But it is a misconception that the UN provides some form of universal panacea. As one considers the actual operation of the UN human rights system a paradoxical image emerges - an organisation which provides a forum for much of the seminal thinking in human rights but which, equally, lacks the machinery to put this into practice.

New Zealand, with Australia and Canada, has been working to bridge this gulf between expectation and reality through concrete proposals to the Committee for reform of its procedures. For example, we proposed the formalisation of procedures to ensure that the Committee's precious time is not unnecessarily taken up with communications which very clearly fall outside the scope of the Convention.

While reform of the UN system will enable it to continue to have a real impact in international human rights, if we are to see a substantial improvement in the universal enjoyment of human rights there needs to be a reality check. Member states are also bound to promote and protect human rights and fundamental freedoms. Given the imperfections of the system, member states cannot afford to abrogate to the UN sole responsibility for action on human violations in their region. Separate but complementary initiatives are also needed.

Against this background I would like briefly to touch on New Zealand's human rights capacity building activities in the region. I spoke earlier about the diversity of the Asia Pacific, and of the need for New Zealand to respond to this in an informed and creative way in seeking to improve human rights performance. The New Zealand Government is active in a variety of regional contexts, supported by funding from the New Zealand ODA programme.

In these activities we seek to bring to bear a sensitivity for the cultural and economic contexts in which we operate. We are also - it must be said - informed by the knowledge of our own human rights shortcomings and our efforts to overcome these. New Zealand's past, like most countries, is marked with scars of injustice and its present is preoccupied with healing these.

There are times when we see no alternative but to speak out and condemn a particular abuse of human rights. We will continue to do so where necessary. But there is no place for New Zealanders to indulge in the triumphalism that was one of the root causes of the cultural relativism divide. Our main emphasis, then, is in fostering non-confrontational and participatory approaches to human rights capacity building, particularly in the Asia Pacific.

It is vital, I would argue, that we continue to work on the development of shared priorities for human rights capacity building and of a shared vocabulary for discussing human rights issues. The UN Asia Pacific Workshop process is increasingly helping to take some of the heat out of the issue of human rights and making this more a matter of familiar - even commonplace - discussion between states, setting aside unresolvable philosophical differences and focussing instead on agreeing priorities for cooperation and human rights capacity building in the region. These now include the strengthening of human rights education, and promotion of national human rights institutions.

I am particularly encouraged by the remarkable growth of national institutions, or human rights commissions, in the Asia Pacific. As well as the older commissions in New Zealand and Australia, they also now exist in Indonesia, the Philippines, India and Sri Lanka. These commissions operate effectively within specific and unique cultural contexts, while seeking to protect and promote human rights standards endorsed by the international community. Representatives of these institutions now meet on an annual basis, and are building cooperative regional networks. Others are setting off down the same path - Fiji, Nepal, PNG and Pakistan and Thailand are working on the establishment of national institutions and others including South Korea and Mongolia are looking closely at the possibility.

There is strong support for assisting this sort of monitoring and advocacy. New Zealand recently helped fund the reappointment of the UN's Special Adviser on National Institutions. This adviser is one of a small handful of international experts in the field of national human rights institutions. His role is to foster their establishment and development in a diverse range of countries around the world. I should also acknowledge the valuable role being played by the New Zealand Human Rights Commission in encouraging and supporting these growing regional links and cooperation.

Beyond their role in regional frameworks, national institutions are especially useful as partners in bilateral capacity building projects. Their ability to interpret local conditions for prospective partners, such as New Zealand, makes them a crucial interlocutor in the process of advancing human rights capacity building. New Zealand's cooperation with the Indonesian Human Rights Commission, KOMNAS HAM, is one example. Through the Good Government Programme we have supported a skills exchange programme with commissioners of the New Zealand Human Rights Commission. And in February we funded a very successful media and human rights seminar held in Jakarta for human rights commissions of the Asia Pacific. Elsewhere, we sponsored the production of an educational video project on human rights, supported by the Philippines Human Rights Commission, with outstanding results. We are currently working closely with the Fiji authorities to assist with the establishment of the Human Rights Commission foreshadowed in their new Constitution.

National Human Rights Institutions are not the only focus of the Good Government Programme. A specialist team from Thailand visited to look at child evidence laws with respect to the sexual abuse of children and to learn how New Zealand developed legislation which protects children in the justice system, and how it applies in practice. The team subsequently contributed to the drafting of new legislation to protect child witnesses in Thailand, especially those involved in commercial sexual exploitation cases. Last March six officials from China's Supreme People's Procuratorate examined New Zealand's legal and judicial system, with a focus on prosecution and court procedures and their application in reinforcing a stronger role for civil law in Chinese society.

The structure of the Good Government Programme gives it flexibility to respond to community and NGO initiatives, reaching beyond civil and political rights into the realm of economic, social and cultural rights. Such projects are often sourced in local communities - we have contributed to a community-based HIV education programme run by OXFAM in South Africa. An NZODA-funded World Vision project builds on a community initiative within Tanzania to raise awareness of the dangers of female genital mutilation and early marriage. A CARITAS scheme we funded was aimed at educating children working in the Pakistani carpet industry of their rights as workers. And there are numerous others being implemented in a low-key but effective manner.

The success of these projects depended in large part on the ability of the Programme to respond constructively to the cultural, economic and political situations of partner countries. And, of course, a practical capacity-building approach is in everyone's interests - given the strong linkage between human rights observance, political stability and socio-economic progress. Support for institutions of governance assists partner countries to battle poverty, promote equality and protect their environment. We must however also be aware of factors which may impede capacity building or good governance initiatives. Economic conditions can prove a major constraint. Some recipient countries have undergone public sector and market reforms which, in turn, have allowed greater opportunities and economic growth. But the gap between the development of markets and relatively unsophisticated governance structures in some developing countries can present a major challenge to donors.

The bulk of the projects funded by the Good Government Programme are developed by NGOs and individuals concerned with issues of human rights and good governance. Credit is due to these non-state actors for their ability to respond flexibly, creatively and on an appropriate scale to a diverse range of needs, and I would like to emphasise the crucial role a well informed NGO constituency can play in our human rights and overseas development assistance policy-making process.

New Zealand policy reflects our size and resources. We cannot cover every human rights issue, and therefore rely heavily on our NGO constituency to help inform us on issues of significance. For this reason the Human Rights Unit at the Ministry of Foreign Affairs and Trade is in regular dialogue on issues of international human rights. It maintains an open door policy, and finds invaluable the input of those who visit or contact the Unit.

In this information age, it is pointless to lament the state of the world but remain ignorant of the facts. Today as never before human rights defenders and NGOs have the potential to become informed to their advantage - the Internet provides an excellent source of material on international and domestic human rights issues. It is with well-informed interlocutors that governments can have the most productive debate and the most constructive working relationships as policy is developed.

The cultural relativism debate has stimulated a clarification of where we stand on human rights. It has certainly reminded us that we must always have regard for cultural context and diversity. New Zealand's international human rights policy reflects this. We still have much to do - much of the world's population still waits for the day when it will enjoy the rights enshrined fifty years ago in the Universal Declaration. Genocide, rape, torture, poverty and discrimination still haunt and torment many. While our human rights policy is increasingly cognisant of the fact that cultural, political and economic contexts condition our approach to promotion and protection of human rights standards, it has not relinquished its firm belief in the universal nature of the human rights and fundamental freedoms enshrined in the Declaration.

We are all entitled to the rights and freedoms set forth in Declaration, "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." That's a direct quote from the second Article of the declaration, and it was perhaps on this point that the drafters of the Declaration proved most prescient. Universal human rights and fundamental freedoms are just that - they inhere in us simply because we are human.

As I said at the beginning of this address, recognition of a common bedrock of shared values is perhaps the only practicable response in a world which is steadily globalising. The challenge for us, practitioners, academics, politicians and individuals alike, is to ensure debate on cultural particularities does not overshadow recognition of these common human values. That it enhances our ability to respond to new challenges in the human rights field. And that we are able, always, to remain practically focussed on the vision expressed so well in the opening words of the Declaration - "recognition of the inherent dignity and of the inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...".