Table 5. Eleven key principles of a Human Rights Approach
CHAPTER 7: COMPLEMENTARITY: WHAT DOES EFFECTIVENESS LOOK LIKE?
7.1 Clarifying robustness v fragility
One of the hallmarks of robustness is that there is a good understanding of and interaction with the UN framework, particularly the international instruments and obligations that have been ratified. With fragility there may be a rush to sign treaties so a state ‗appears‘ to be a good international citizen when the implications of fully implementing the rights involved are not fully understood. As noted in Section 2.1, Minister of Justice Simon Power had confirmed that New Zealand‘s stance is only to ratify in a considered manner (Power, 2009). This thesis has looked at both the top-down influence of the UN towards New Zealand, and the bottom-up influence of this country back towards the UN. What this type of research shows is that the long evolution of governance produces in some states a mentality that is much more susceptible to the kinds of standards that emerged after World War II. In New Zealand‘s case, it was precisely its participation in the formation of the UN that gave it a bedrock human rights focus, and this had already been foreshadowed in everything that had
come before such as common law standards. This long evolution is not something that is easily transported into a country like Zimbabwe, for instance, which did not help set up the international human rights architecture and which has had a difficult human rights record.144
Each country that joins the UN is invited to accept the human rights framework, but there will of course always be states that do not believe in the human rights principles behind it. It is possible to show these states what mechanisms they need to build robustness (such as bills of rights, NHRIs, domestic laws and policies), but their state sector needs to own these for them to have any real meaning. The ideal environment in which human rights are taken seriously is when there is a rights-sympathetic state sector, a political system compatible with the international human rights system, and citizens willing to create a climate that allows rights to be acknowledged. As New Zealand is fortunate to have all three present, rights have been given a central position as a public policy goal (or a set of underpinning principles).
While some states may not be robust in this area, if there is good intention these countries can be on a spectrum towards becoming stronger human rights environments.
Even in states with ongoing human rights abuses, it might be that the NGO sector and other civil society organisations are vibrant and full of people who record human rights violations and provide evidence for when there might eventually be mass prosecutions.
This is parallel to the situation in South Africa prior to 1994 when apartheid was overthrown. For many decades before the South African constitution came into effect, civil society organisations, international movements of people, multilaterals and the UN system were building a very deep human rights environment amongst sympathetic people. When the apartheid regime was eventually toppled, this experience meant that
144 What is striking about the Zimbabwe situation, however, is that the state sector formally has some of the right human rights credentials, i.e. there is a perfectly good constitution, but the reality is vastly different as many of these rights are constantly breached. The most recent Amnesty International report for instance outlines many human rights problems: the aftermath of the March 2008 elections resulted in ‗at least 180 deaths, and at least 9,000 people injured from torture, beatings and other violations perpetrated mainly by security forces, war veterans and ZANU-PF supporters‘; perpetrators of human rights violations were not brought to justice and given impunity; extrajudicial executions and unlawful killings; enforced disappearances; torture and other ill-treatment; restrictions on freedom of expression and on the work of human rights defenders (see Zimbabwe country report at www.amnesty.org). In terms of its constitution, it has the potential to protect many rights (mainly first generation): Chapter III of the Zimbabwe Constitution (1979 with Amendments to 2005) contains: The Declaration of Rights: 11. Preamble; 12. Protection of right to life; 13. Protection of right to personal liberty; 14. Protection from slavery and forced labour; 15. Protection from inhuman treatment; 16. Protection from deprivation of property; 17. Protection from arbitrary search or entry; 18. Provisions to secure protection of law; 19. Protection of freedom of conscience; 20. Protection of freedom of expression; 21. Protection of freedom of assembly and association; 22. Protection of freedom of movement; 23. Protection from discrimination on the grounds of race etc. A
the state itself could quickly mainstream a human rights focus. So in the one country it is possible to have a state sector treating human rights with contempt and domestic and international actors building a robust human rights mentality.
Also when there is fragility instead of robustness the judiciary can be taken over by the ruling party and used as an instrument of civil war, essentially using the law+litigation framework to prosecute opponents.145 Looked at from this perspective, New Zealand is not contesting the viability of the human rights system; there is simply haggling over the margins. Also in this country the state has not been the aggressor; in fact with its social welfare system and willingness to monitor itself with non-discrimination legislation it has largely been the protector. The argument in this country is mostly not about whether the citizen can trust the state, but about how much the state should be involved in legislating on issues.146 When there is fragility, however, a state can struggle to accept any core human rights standards and can itself be complicit in crimes against its own population such as genocide. It needs to be remembered, however, that the growth of the human rights system in most western liberal democratic countries has been the result of a domestic struggle against oppression (either by the state or other actors) at one time or another, so the condition of fragility is one that states with robust human rights governance have already gone through at some point.
It is also possible that a government could take a minimalist law+litigation approach and do the least required under international law to fulfil its international human rights treaty obligations. This would be a narrow reading, perhaps a legalistic approach. Also, if in any state sector the relationship between law+litigation and policy is poorly understood, there will be a tension instead of an alignment between the two. Some government agencies within a state (even in New Zealand) may by virtue of their portfolio take a legal stance on issues, while others would naturally tend towards a policy view. With complementarity – proactively combining the law+litigation and public policy fields – the result is closer to a gold standard of international best practice.
Many countries cannot afford a gold standard human rights system, but it should still be
145 Bradford and Scott (2009: 101) also made the link between fragility and corruption: ‗Probably most important is the level of corruption which exists, recognising that all fragile states have a record of corruption in their history; it is a factor which coexists with fragility, just as a relative absence of corruption – and strong independent agencies to combat it – coexists with strong states‘.
146 The years 1990-1993 (when three pivotal pieces of human rights legislation were enacted – NZBORA, Human Rights Act, Privacy Act) were an important time for contesting the boundaries of the New Zealand state‘s area of activity in relation to its
possible to find some economic and effective ways to reach towards that goal. Here the ongoing debate set out in the previous chapter about how to elevate second generation rights is helpful, as the discussion is already underway about novel ways to increase access to these rights given the ever-present resource limitations in many states.