Denver Journal of International Law and Policy

In Madrid, the trial of famed Spanish Investigative

will continue this week as the Spanish Supreme Court denied Garzón’s request to drop the charges against him.  Garzón first rose to prominence in Spain and amongst human rights groups worldwide for his investigations of human rights crimes, most notably his role in the 1998 indictment of Chilean dictator Augusto Pinochet. In 2008, Garzón initiated an investigation, which included exhumations of mass graves in Spain, into unsolved deaths and disappearances that occurred under the Franco regime. The judge now sits accused of violating a 1977 Spanish “amnesty law” that prohibits inquiries into political crimes from the Franco era.

Though public prosecutors agree with the defense’s calls to drop the charges, the Spanish legal system allows private citizens to levy criminal charges against individuals. The charges against Judge Garzón have been raised by two right-wing organizations, Clean Hands and Liberty and Identity, who assert the judge has needlessly “re-opened wounds” from the Franco era as a means to promote a leftist political agenda. Many on the right were angered when Garzón named Franco himself, dead since 1975, as a suspect in crimes committed during the dictatorship. “Garzón might as well put Napoleon on trial…. It is an outrage. There were amnesty laws,” announced former Franco minister and People’s Party founder Manuel Fraga.

Garzón and his supporters, many of whom are families of the victims of Franco era repression, feel that victims of the regime deserve answers, and that crimes of such magnitude should be exempt under amnesty laws or statutes of limitations. Thousands have lined the streets around the Madrid courthouse throughout the trial to waive signs and express support for the judge’s inquiries into the fate of the 114,000 people who were killed or disappeared under the Franco regime. “The amnesty law refers to crimes of a political nature, in no way can it be said that crimes against humanity of the kind that were alleged could have any political nature,” said Judge Garzón.

Human rights groups agree with Judge Garzón and have condemned the trial as hypocritical and politically motivated. The Spanish government previously supported Garzón’s investigations into other human rights abuses outside of Spain, under the “universal jurisdiction” theory that serious crimes must be prosecuted regardless of where or when they occurred. But the government changed its tune once Garzón started looking into domestic issues. Some point to additional charges brought against the judge, including corruption, as evidence of a political smear campaign against a man who developed many enemies in his rise to prominence.

The Spanish Supreme Court’s choice to pursue the criminal case against Garzón raises questions about the power of international human rights norms and how they can be affected, or even trumped, by state law. In a rejection of the theory of universal jurisdiction espoused by Garzón and many human rights advocates, Spanish authorities have prioritized a local amnesty law of questionable purpose above the prosecution of what Garzón described as the “systematic elimination” of thousands of people.  In allowing the case to proceed, the Spanish Supreme Court ignores the international law precedent established by Garzón years ago when he used international law to trump Chilean amnesty laws, using the Chile’s amnesty as the legal basis for the extradition of Pinochet from Chile to Europe for prosecution.

A report released today by the Ved Nanda Center for International and Comparative Law found that the government of Bahrain is continuing to prosecute civil society leaders in violation of international law and the recommendations of a government-appointed human rights commission.  The trial of human rights attorney, Mohammad al-Tajer, is scheduled for February 7^th while the appeal of labor leader, Mahdi Abu Deeb is scheduled for February 19^th.

“The government of Bahrain would clearly like to sweep these cases under the rug,” said Prof. David Akerson, a lecturer at the University of Denver Sturm College of Law.  “But our review indicates that the government is prosecuting these civil society leaders merely for calling for democratic reforms despite repeatedly saying that it is committed to implementing the recommendations of the commission.” Akerson is a former prosecutor at the UN-International Criminal Tribunal for Rwanda and the UN-International Criminal Tribunal for the former Yugoslavia.

In the wake of a brutal crackdown on protestors last year, the king of Bahrain appointed an international commission to evaluate allegations of human rights violations.  The commission found that roughly 300 individuals were prosecuted in violation of their right to freedom of expression.  The commission also found that the government engaged in a systematic campaign to “terrorize” civil society leaders, tortured detainees and prosecuted individuals in military courts that failed to adhere to basic international and domestic due process standards.  It recommended that the government release all individuals that were prosecuted merely for calling for democratic governance.

Abu Deeb led a strike in which eighty percent of Bahrain’s teachers participated.  He was allegedly thrown from a building during his arrest and his tortured confession was admitted against him at trial.  Al-Tajer was the subject of an intimidation campaign, including receiving a video of himself sleeping in his bed at home.

“Unlike other Arab states where massive protests have succeeded in starting the reform process, the protests in Bahrain have been stymied by a brutal crackdown on civil society leaders,” said Ahmad Assed, co-author of the report and a defense attorney with significant domestic and international criminal experience.  “If the government refuses to release these advocates for non-violent, democratic reforms, it may undermine prospects for a peaceful transition to democracy.”

While President Obama criticized the crackdown and Sec. Clinton called on the government to implement the recommendations of the commission, the State Department recently decided to proceed with military assistance to Bahrain, despite protests from human rights groups.  Major protests are planned this weekend to mark the anniversary of the protests.

The full report is available here.

Like sustainable development, Chinese promotion of human rights is seen as both a cause and a process – one that should be pursued at all times, but with an incremental approach resulting in changes that will be slow in coming.  In the past three decades, China’s process of opening up has lifted 300 million people out of poverty.  This is as much a human rights achievement as it is an economic one.  China’s economic success combined with constitutional and administrative reforms, increased participation in UN human rights activities, and developments in the Chinese criminal justice system suggests that the nation is serious about making improvements to its human rights record.  However, China is adamant that its perspective is in some ways intractably different from that of the west with regards to human rights.

There are four principal constitutional developments that have taken place over the last two-and-a-half decades that have the potential to improve human rights in China.  First, a 1988 amendment to the Chinese constitution legitimizing the private economy resulted in an improvement in the humanitarian situation, at least for those able to take part in the subsequent economic expansion.  This development was bolstered in 1993, when the Chinese constitution was amended to formally endorse a market economy.  The third important constitutional change took place in 1999 when the rule of law was officially enshrined in the constitution.  Finally, in 2004, China expressly endorsed human rights as such when a provision was added to the constitution saying, “The state respects and protects human rights.”

From these four developments, Judge Xue concluded that human rights are now a fundamental principle of the Chinese legal system.  However, the Chinese constitution can never be applied directly; the Chinese legislature, the National People’s Congress (NPC), must promulgate all laws dealing specifically with rights.  Thus, the Chinese legislature can essentially insert a “Notwithstanding the constitution” clause into pieces of legislation that directly contravene the constitution itself.  This legislative feature makes the above-mentioned constitutional developments much less satisfying than they would be had they been contained in a constitution operating as the supreme law of the land.

Chinese administrative developments, on the other hand, seem to have produced much more concrete results.  In 1982, China passed its law on civil procedure, which marked the beginning of the Chinese administrative law regime.  The civil procedure law allowed citizens to sue state organs.  Since the adoption of the law, there have been over 900,000 suits against the state.  According to Judge Xue, 40 percent of these suits end with the state losing, and 25 percent of the suits end with the state paying damages.  This administrative system provides for a mechanism to expose inefficiency and corruption, which in turn leads to a government more able to further the human rights of its citizens.

Judge Xue also cited an increase in participation in United Nations human rights activities as evidence that China is committed to human rights.  Despite its history of being excluded from the international community, China has ratified most international treaties and conventions related to human rights.  It is a state party to the Convention Against Corruption and even initiated the Treaty on the Rights of Persons with Disabilities.  To ensure continued compliance with these international agreements, China submits regular reports to monitoring bodies.

Of all the areas mentioned by Judge Xue in her lecture of human rights, she was most open about the shortcomings of the Chinese criminal justice system.  Though she noted that China has made substantial progress in this area, especially as it relates to the criminal code and capital punishment, she acknowledged that the criminal justice system “remains under criticism, both at home and abroad.”

The first positive development in the Chinese criminal justice system came in the form of the modernization of the Criminal Code that took place in 1997.  The 1997 amendments to the code replaced the practice of “crime by analogy” with the more positivist principle of nulla crimen sine lege – the notion that “without the law, there is no crime.”  Additionally, through the modernization of the code, the Chinese government embraced the ideas of proportionality between the crime and the punishment and equality before the law and sought to embody these two principles throughout the Criminal Code.

Similarly, developments related to capital punishment suggest that the Chinese government takes human rights into consideration when making laws.  In 2007, the NPC passed a law requiring all death penalty cases to be reviewed by the Supreme Court, hopefully minimizing erroneous executions.  In the last several years, thirteen crimes have been removed from the list of capital offenses, and capital punishment has been abolished altogether for persons over the age of 75.  These developments were a direct response to changes popular opinion with regards to human rights – an opinion to which Judge Xue would argue the Chinese government is finely tuned and highly responsive.

However, Judge Xue finished her discussion of capital punishment with a statistic, which calls into question the nature of the Chinese government’s relationship to public opinion when she stated that a Chinese study found that 99 percent of the Chinese population was against abolishing the death penalty.  That statistic more closely resembles propaganda from the politburo than sound social science, as there are few policy positions with which 99% of people are in agreement.  An issue as controversial as the death penalty is not likely to be one of them.  Citing this statistic marked the only time that I, and many of my colleagues at the Academy with whom I spoke, questioned the veracity of Judge Xue’s presentation.

This questionable statistic aside, Judge Xue made an accurate assessment of the differences between the Chinese and western approaches to human rights and offered a legitimate criticism of the western perspective.

Judge Xue distinguished what she sees as the difference between the Chinese and Western approaches to human rights when she said that the Chinese government believes that “human rights is not a heavenly principle, but an actual set of policies.”  In her view, the western treatment of human rights is akin to a frequently misstated quotation falsely attributed to Marie Antoinette during the French Revolution that “If [the peasants] have no bread, let them eat cake.”  Despite the historical misrepresentation, the idea behind the quote is that the west, unable to sympathize with the realities of a developing country, calls for instantaneous improvements in what it sees as an unacceptable human rights situation from an uninformed and unrealistic position.  It simply does not make sense to condition international recognition on full realization of human rights because no country has fully realized all human rights for all of its citizens.  Indeed, such a full realization may not even be possible.

This fundamental misunderstanding between the developing and developed worlds has led to what Judge Xue described as a “politicization” of human rights.  This politicization is evidenced by the fact that, while “no western country has ever been sanctioned” by the United Nations for human rights violations, eleven motions have been tabled against China.  Zero of the eleven tabled motions were passed, suggesting, according to Judge Xue, that the motions were the result of domestic political pressure.

Judge Xue argued that western countries recognize China’s participation in the field of human rights, but they take a western view as to the substance of that participation, seeing China as a challenge to heretofore-dominant western values.  This position in wrongheaded, she continued, because China’s position on cultural relativism is not a challenge to western values, but rather an assertion that what may be perfect for one culture will be imperfect for others.

China is committed to moving forward in the area of human rights by adhering to a balanced approach between human rights and duties to society and emphasizing local conditions.  China asserts its right to develop in the realm of human rights, which encompass economic, social, and cultural rights and involve all aspects of Chinese society.  It insists on doing so in a way that works in the context of Chinese culture and history.  In concluding her lecture, Judge Xue implored her audience to bear in mind the unchallenged fact that the development of human rights standards is highly correlated to the wealth of a nation.  As such, the west can expect an increase in human rights protection in the future.

 

“In the Five Principles of Peaceful Coexistence, the principle of sovereignty ranks first.  It is the main principle to which the other four principles are related.  It is linked to territorial integrity and supplemented by the principles of non-intervention and non-aggression.  Equality and mutual benefit is the concrete expression of the sovereignty of a State, while peaceful coexistence is premised upon the respect of the sovereignty of states.”

This passage from Wang Tieya’s 1984 course illustrates the primacy of sovereignty in the Chinese model.  It comes as no surprise that China guards its sovereignty so jealously, considering its history of international relations.  China sees its sovereignty as being threatened by Western powers and considers this threat to be an affront to the fundamental principles of international law.  The theme of sovereignty was just as manifest in Judge Xue’s 2011 lecture as it was in Professor Wang’s 1984 version.

As Judge Xue stated in her lecture, sovereignty is a “perpetual theme for China, both theoretically and practically.”  China adheres strictly to this principle and its contents, which require “supremacy internally and independence externally.”  In China’s view, sovereignty is and should remain the basis of the world order.

According to Judge Xue, the concept of sovereign equality rejects the existence of supranational bodies.  Thus, the European focus on regional organizations and supranational governance is evidence of a paradigmatic shift away from sovereign equality in favor of world government.  But the attack of sovereignty does not stop at the border of the European Union.  The west’s treatment of developing nations further suggests to Judge Xue that sovereignty is under attack worldwide and requires protection.

Judge Xue stated a belief that the west’s attempts to retain dominance in the formation of international norms and control of international structures are a threat to the sovereignty of developing nations.  This phenomenon, according to Judge Xue, explains the focus on human rights and global governance, the frequent use of intervention to achieve these goals, and a weakening of sovereign equality on the whole.  From the Chinese perspective, intervention of this sort has its historical roots in overt imperialist goals and continues to this day under a different name.  Humanitarian intervention of a failed state has become the norm, regardless of whether the failure is the result of internal armed conflict, economic issues, or human rights violations, as they are properly understood.

From Judge Xue’s criticism of intervention – that it is employed to counter internal armed conflict, economic crises, and human rights violations alike – one can infer that the Chinese issue with the status quo does not lie in the existence of intervention but the indiscriminate use of such intervention.  While human rights violations, “properly understood,” may require third party intervention, countries should be left to handle internal armed conflicts and economic crises as they see fit.  What constitutes a “proper” understanding of human rights violations is a highly contentious question – one that will be left for Part 5 of this series.

None of this is to say that China sees its role in the international community as that of an autonomous outsider.  As Judge Xue rightly noted, no state can act alone, and all states, including China, are bound by treaties that that must be followed in good faith.  Moreover, China interprets the term “treaty” broadly to include memoranda of understanding, joint communiqués, and other instruments lacking the formality of a typical treaty.  China sees an important role for international law in the area of serious international crimes and has made significant contributions in that area.

However, China strongly prefers to deal bilaterally as opposed to multilaterally and insists on negotiating with a state with which it is in conflict before the international community steps it.  It sees international organizations as trying to reshape the international law creation process, silencing the voices of developed countries.

Judge Xue framed the central issue correctly when she said, “The question is, how should states with different systems and values interact with one another on the international stage?”  For her, and for China, the answer to that question lies in sovereignty, which consists of substantive equality free from superpowers, respect for internal political decisions, and mutual agreement on freedom, equality, respect for the environment, and respect for human rights.

This month, the once vague idea that businesses have duties toward human rights became explicit. The United Nations Human Rights Council unanimously endorsed the Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework, a document the UN itself called “unprecedented.” It is more than that: it’s game-changing. The vote of the 47 members of the Human Rights Counsel sent a clear message to corporations worldwide: human rights are now the business of business.

The endorsement of the ‘Guiding Principles’ culminates a six-year process that was led by Harvard Professor John Ruggie. In 2005, Prof. Ruggie was named Special Representative to the Secretary General on human rights and transnational corporations. Prof. Ruggie received a three-year mandate to clarify corporate human rights standards for both business entities and states. He produced the Framework for Human Rights and Business that received unanimous endorsement from the Human Rights Council. In 2008, he was given another three years to further develop his Framework into the guidelines that were approved on June 16, 2011. Prof. Ruggie himself observed “the Council’s endorsement establishes the Guiding Principles as the authoritative global reference point for business and human rights.”

Prof. Ruggie’s work has capped the debate on whether business enterprises have human rights duties. The ‘Protect, Respect, and Remedy’ framework requires States to protect against human rights abuses by corporations, corporations to respect human rights, and both to furnish remedies for victims of human rights abuses. The Guiding Principles lay out specific actions governments and businesses need to perform. For instance, States must clarify expectations of corporate behavior, enact and enforce legislation, and investigate and remedy abuses. Corporations must formally state a commitment not to violate human rights, and demonstrate their efforts to uphold that commitment, through assessment, monitoring and remedial actions. The Guiding Principles outline a human rights due diligence process. This entails assessing actual and potential human rights impacts; integrating and acting upon the findings; tracking the effectiveness of responses; and communicating how impacts are addressed. In addition, the Human Rights Council approved the creation of a working group that will monitor the implementation of the Guiding Principles. The group will consist of five experts that will be selected at the next session of the Human Rights Council in September.

Though the Guiding Principles received unanimous approval from the UN, some human rights activists and Council members expressed disappointment. The representative from Ecuador lamented that the framework, by failing to create new legal liabilities for corporations, has fallen short. Oxfam questions the efficacy of leaving corporations and weak states to police themselves. However, virtually all major human rights organizations found something to praise in the Guiding Principles, admitting it was significant progress, even if they saw it as insufficient.

The Guidelines will have an immediate impact. Corporations that have pledged to align their operations and strategies to universal human rights norms now have substantive guidance. The Guidelines also provide a clear, uniform system for corporate evaluations, which can be shared with the public. In addition, the Guidelines have already been endorsed by large multinational corporations including Coca-Cola Co., General Electric and Goldcorp.

We at NomoGaia have been following, supporting and working with Prof. Ruggie and his team for several years, specifically on the issue of a corporation’s duty to investigate how its actions affect human rights. Our focus has been developing reliable methods of evaluating these impacts. The UN’s Guiding Principles define and mandate such assessment. There is little doubt that the ideas contained in the Guiding Principles will have a major influence on future theory and practice in the increasingly important arena where human rights and corporate action intersect.

The UN recently adopted a set of guiding principles based on the dual responsibility of governments and companies to protect human rights against corporate abuse, but it misses the mark. Why don’t we hold businesses to a higher standard? Who should be responsible for setting the proper standards for corporations?

Summary: Governments and companies have a duty to work together to promote human rights rather than simply protect against human rights from corporate abuse. Ruggie’s endorsement of a dual responsibility misses the mark on what is truly needed, i.e. a drastic shift in corporate culture and a decrease in corporate influence of national legislative agendas.

On June 16, 2011, the United Nations Human Rights Council unanimously endorsed a new set of global guiding principles for businesses (“Guiding Principles on Business and Human Rights“) designed to ensure that companies do not violate human rights in the course of the their transactions and that they provide redress when infringements occur. The principles are a culmination of six years of research led by Professor John Ruggie of Harvard University, the UN’s special representative on business and human rights since 2005, who visited 20 countries, conducted online consultations with thousands of participants, and received dozens of recommendations. According to Ruggie, states and companies have a dual responsibility under which states must enact and enforce the appropriate laws and companies have an independent responsibility to respect human rights. This is an effort to combat the lack of enforcement or weak status of national laws which is often used as an excuse or explanation for the failure of businesses to act responsibly.

However, one should pause to think about what type of solution will resolve this inefficiency and yield the desired results. When national laws are inadequate and/or unenforced companies are free to violate human rights on their path to gaining market share, in the so-called, “best interest of their shareholders.” This problem is further exacerbated by the exponential growth of multinationals which, due to the nature and expanse of their global operations, are capable of committing both major and minor violations and these often go unnoticed and/or unpunished.

The guiding principles differ from the UN’s Global Compact (which Ruggie was also instrumental in designing) and mark the culmination of Ruggie’s tenure as the special representative on the issue of human rights and transnational corporations and other business enterprises. In spite of the Global Compact’s 8,000 corporate members from over 135 countries, it has befallen a great deal criticism for its failure to punish those companies who violate its code. Whereas the Global Compact was enacted as an initiative of the secretary general, the principles recently adopted by the Human Rights Council were established by governments and include remedy and prevention mechanisms in order to broaden their scope beyond that of the Global Compact. Yet after six years and extensive research, more should be expected.

The framework is based on three pillars – the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means avoiding infringing on the rights of others and to address adverse impacts that occur; and greater access by victims to effective remedy, both judicial and non-judicial.

Under the ‘State Duty to Protect,’ the guiding principles recommend how governments should provide greater clarity of expectations and consistency of rules for business in relation to human rights.
The ‘Corporate Responsibility to Respect’ principles provide a blueprint for companies on how to know and show that they are respecting human rights.
The ‘Access to Remedy’ principles focus on ensuring that where people are harmed by business activities, there is both adequate accountability and effective judicial and non-judicial redress.

Human Rights Watch described the Principles as a “squandered opportunity” to take meaningful action to curtail business-related human rights abuses. In spite of the differences from the Global Compact, the Principles represent only a “weak” stance on human rights in business due to the absence of a mechanism to ensure that the basic steps to protect human rights set forth in the Guiding Principles are put in practice.

Ruggie claims the Principles are the authoritative global reference point for business and human rights and also provide a concrete mechanism to civil society, investors and others through creating the necessary tools to measure real progress in the daily lives of people. On the other hand, critics see them as guidance alone, where companies are encouraged but not obliged to respect human rights, and there is little certainty that they are clear enough to ensure that they are carried out and monitored effectively. According to Arvind Ganesan of Human Rights Watch, rather than guidance alone, what is needed is a mechanism to scrutinize how companies and governments apply these principles.

Furthermore, while the Guiding Principles were adopted by governments and in Ruggie’s view, represent collaboration between states and corporations, his own belief that the inadequacy of the current status quo is a result of unenforced state laws. Yet when state legislative bodies are so heavily influenced by business and lobbied by corporate interests, it is hard to imagine a collaborative endeavor in which businesses pressure governments to demand more corporate responsibility. Until corporate culture changes in such a way that respecting human rights becomes synonymous with making profit and actions that benefit stakeholders are equally promoted as those that benefit shareholders, when the triple bottom line is considered as important as the single bottom line, then businesses will be in a position to push governments to accordingly enact those laws that will accommodate and further corporations’ needs and desires to promote and respect human rights because doing so is not only good, but also profitable.