By Richard Bourne*
A forthcoming debate on human rights and the Commonwealth, at 6.30 pm on Tuesday 6 March at London University Senate House, goes to the heart of the values and effectiveness of the modern Commonwealth, and its 53 member states.
The motion reads, “This House thinks that Commonwealth commitments for human rights are just for public relations.” The lead speaker proposing this motion is Professor Joshua Castellino, Dean of Law at Middlesex University, who has done much human rights work internationally, and specifically in Commonwealth states in South Asia and Africa. Leading the opposition is Colin Nicholls QC, emeritus president of the Commonwealth Lawyers Association, who was active in the early years of the non-governmental Commonwealth Human Rights Initiative (CHRI), and played a key role in Commonwealth adoption of the Latimer House principles in 2003, on the separation of powers between executive, legislature and judiciary. Each speaker will have a postgraduate human rights student to second the motion.
The debate itself will have a high degree of student participation. It is one of a sequence being promoted by the Round Table journal, the Commonwealth journal of international affairs, in the run-up to the April summit in London. Other debates have already taken place in Birmingham and Exeter, and the aim is to create discussion in the academic and student community with deliberately challenging motions. Too much of the infrequent British reference to Commonwealth membership is cosy, or focused on the Queen’s headship of the association. University courses usually omit the topic, and the Round Table is delighted that the Human Rights Consortium at the School of Advanced Study is supporting this London event.
This is a debate in which two viewpoints can be honestly argued. Although human rights just featured in the Singapore Declaration of 1971, the issue became salient in 1991 with the Harare Commonwealth Declaration of Commonwealth leaders – an ironic location in the light of awareness of subsequent human rights abuses in Zimbabwe, which led Mugabe to withdraw his country’s membership in 2003. The timing was apt. Mandela had just been released from jail. The Berlin Wall had fallen three years before the Harare summit.
But many activists, including myself – I attended a conference of African human rights activists in Harare as director of the CHRI, prior to the summit – were thoroughly dissatisfied. Leaders frequently forgot their Commonwealth declarations on the flight home. Civil society lobbying continued and, in 1995, after the execution of Ogoni leaders by General Abacha in Nigeria, the Commonwealth took a step which, at the time, was unique in the world. As a voluntary body it set up a rules committee, the Commonwealth Ministerial Action Group (CMAG), which at once suspended three west African dictatorships from membership.
Arguably this was a high point of Commonwealth action for human rights. CMAG lost significance. Two proposals for stronger human rights failed at the Commonwealth Heads of Government Meetings in Abuja in 2003 and then in Perth in 2011, after a high-powered Eminent Persons Group had recommended a High Commissioner for Democracy, the Rule of Law and Human Rights – all three causes which governments said they favoured, but seemed reluctant to support more effectively. Geoffrey Robertson QC, the international human rights lawyer and an Australian by birth, wrote a scathing article in The Observer dismissing the Commonwealth. Although human rights feature in the Commonwealth Charter of 2013 as a commitment there is no implementation for anything in the charter, quite unlike the United Nations Charter, and few in the over two billion citizens of the Commonwealth are aware that it, or the Commonwealth, exist.
Nonetheless it is worth remembering that three member states – apartheid South Africa in the 1960s, Zimbabwe in the 2000s, and The Gambia under the erratic President Jammeh – have all left the Commonwealth because they thought it was getting too keen on rights. Two out of the three have now rejoined, after improvements in the rights environment. By contrast the United Nations, with a universal membership, is not able to suspend or expel governments.
Why are some Commonwealth governments not willing to let the association become more serious? There are many reasons. Internally, some see human rights bodies as shields for political opponents – and in the United Kingdom it is not unknown for a politicians to take up roles in civil society after losing office. Others do not forget that the Commonwealth emerged from the authoritarian and sometimes abusive British Empire, and are reluctant to see any kind of recreation of an overarching legal or moral instrument.
There are arguments too against the Commonwealth seeking to duplicate existing international institutions, including newer ones like the African Commission on Human and Peoples Rights. There can be a distaste and distrust for mission creep in human rights. What started as an attempt to ban the torture, genocide and individual abuse which had occurred during the Second World War became the second generation socio-economic rights of the 1960s, then wider environmental, developmental and indigenous rights in the later twentieth century.
Same-sex rights, still banned in a majority of Commonwealth states and too controversial to feature in the upcoming London summit, were not in the forefront of international concern for rights when the CHRI published its manifesto – “Put Our World to Rights” – in 1991 before the Harare summit. There is also concern that rights depend on the political lens through which they are examined, and media enthusiasm. Few were concerned with the fate of the Rohingya minority in Myanmar until a few months ago; the judges at Nuremberg were not concerned with the morality of the atomic bomb at Nagasaki, nor the misbehaviour of allied troops during the liberation of Europe. Above all, many human rights activists are criticised for looking aside from profound challenges to peace and the right to life, and much human suffering, focusing myopically on state abuses or overlooking the crimes of non-state actors.
There are also issues of capacity affecting the tiny Commonwealth Secretariat, which is getting tinier still as a result of cutbacks by the developed donor members – the UK, Canada, Australia. Staff there have done creditable work helping governments report to Geneva with their Universal Periodic Review, for example. But they are precluded from making judgements about rights in countries. Lack of resource, rather than lack of ambition, has constrained the work of the CHRI also. While in the 1990s it was looking critically at issues of political rights it has, from its base in Delhi since 1993, focused more on policing, access to information, and the dangers besetting media workers. But its biannual reports to the summits have covered other issues – for instance light weapons, the impact of poverty on rights and, this year, the response of Commonwealth nations to the scandal of modern slavery.
The event taking place at the University of London has a wide terrain to debate, and whatever the vote at the end, it will not put paid to the arguments.
* Richard Bourne was first director of the Commonwealth Human Rights Initiative, when it was based at the Institute of Commonwealth Studies in 1990, and is coordinating the current debates supported by the Round Table journal.
More information and registration for the debate is available on the Institute of Commonwealth Studies events page. The event is free and open to all; it will offer a thought-provoking debate. Refreshments will be available and a reception will take place at the conclusion of the event.