CHAPTER VII


HUMAN RIGHTS AND A NEW REGIONAL

ORDER:

Csce as a Framework for Cultural Consensus


DAVID LITTLE




OPPORTUNITIES

Ms. Catherine Lalumière, Secretary-General of the Council of Europe, made the following comment at the CSCE Symposium on Cultural Heritage in Cracow last summer:

We are in a key period in the history of European unification. For the first time [in] many years Europe is taking on a new shape without war. For the first time [Europe is becoming culturally unified] now that the ideological frontiers have collapsed and pluralist democracy and human rights have been generally accepted as the central reference point, not only for political and social, but also for cultural legitimacy.

It is Ms. Lalumière's point about human rights and pluralist democracy as the new focus for European cultural unity that is so relevant to the attempt to explore whether there is a `new cultural consensus' within greater Europe, though we also want to consider North America. If there is such a new transatlantic consensus, what might it be, and how might it be utilized as a basis for peace and cooperation in the future?

Given this concern, is Ms. Lalumière's proposal right, not only for greater Europe, but for European-American relations as well? Is it, in fact, correct to say that the "ethical values" of Europeans and North Americans (namely, their basic normative beliefs concerning how people should treat one another, and how power and wealth should be organized and distributed) are at present converging around a common cultural commitment to human rights and pluralist democracy?

From across the Atlantic one is inclined to answer Yes to this question, although the response is somewhat tentative and uncertain. That is partly because of some special circumstances currently affecting both advanced and potential democracies. It is also because Americans are hardly close enough or sufficiently well-acquainted with contemporary European realities to pass final judgment on such a big question. The verdict of others is indispensable, and I eagerly await your evaluation of my suggestions.

On the one hand, there are, I believe, strong reasons for supporting Ms. Lalumière's thesis. The "human rights revolution," which filled in part of the sketch for a New World Order after World War II, was particularly potent for Western Europeans and Americans. Because of their heritage and their experience in the war, Western Europeans and Americans showed singular enthusiasm for basic human rights principles: that governments are not at liberty to treat their citizens as they see fit; that they are accountable to universal standards respecting the "the equal and inalienable rights of all members of the human family"; and that each state's compliance with those standards is the business of all states.

In the post-war period, some Western Europeans have been more faithful than Americans in living up to the radical implications of the principles of human rights. The United States exerted singular leadership in the human rights field immediately after the war, but its devotion to the cause of international human rights "virtually disappeared" during much of the Cold War, from about 1953 until 1973.1(1) In the early 70s, a temporary thaw in US-Soviet relations, together with widespread American revulsion toward governmental abuses at home and abroad, caused Congress and then the Carter administration to reactivate latent commitments, and to give human rights an explicit, if still variable, place in American foreign policy.

Even there, however, the US has tended to implement only one part of the human rights imperative. Until very recently, it has resisted surrendering its sovereign prerogatives to international authority by refusing to ratify the major UN or relevant regional human rights treaties.2(2)

By contrast, the Western Europeans modified their claim to sovereignty, not only by ratifying the UN treaties, but also, and more significantly, by adopting the European Convention on Human Rights in 1953, with its provisions for supranational legal institutions. While the record is not flawless, it provides some salient guidelines for the effective international administration of human rights.

The European experiment is of great importance culturally. The Preamble to the European Convention specifies as a condition of membership being "like-minded" and sharing "a common heritage of political traditions, ideals, freedom and the rule of law." Disallowed are any acts or practices, whatever cultural warrants they may have, that violate the provisions of the convention. Discriminating on grounds of sex, religion, ethnic origin, membership in a national minority, etc., or inflicting "inhuman or degrading treatment or punishment" is not excusable just because there happens to be religious or other support for such conduct in a given tradition. By imposing definitive standards of this sort, human rights principles mandate a significant degree of cultural consensus.

That consensus was markedly, if unexpectedly, expanded by the Helsinki Final Act, adopted in 1975 by the US, the Western Europeans, and the Soviet bloc. The act, which established the Conference on Security and Cooperation in Europe (CSCE), contained a revolutionary section on human rights. Contrary to the intentions of the Soviets, or the expectations of the US, the provisions in favor of freedom of movement, information, cultural exchange, and education became the rallying point for dissident movements, like Charter '77, throughout Eastern Europe, as well as inside the Soviet Union.

It could be argued that as the result of the exchange of information and of ideas and ideals, the primary benefit of the Helsinki agreement was a reconstituted sense of cultural interdependence among the states of greater Europe. In the recent words of one commentator:

As one totalitarian regime after another toppled in Europe, each of the emerging emancipated leaderships pointed specifically to the Helsinki process as a critical catalyst in the drive for democracy. When Czechoslovak President, Vaclav Havel, a man who one year earlier stood in a Prague jail because of his political beliefs, stood at the Paris Summit and endorsed CSCE as instrumental in bringing about his country's Velvet Revolution, no one could doubt his qualifications for making such a judgment or his sincerity.3(3)

At present, CSCE consists of about 50 membersWestern and Eastern Europeans (among them, the Holy See), the US and Canada, and the FSU Republics. With its emphasis on human rights as central for building cooperation among the members, it provides the very sort of framework for cultural consensus we are seeking. Although membership rests on purely political, and not legal, commitment, the organization has in fact made an important, even path-breaking, contribution to human rights thinking in the process of developing standards that are sensitive and pertinent to the difficult conditions currently confronting the members.

For our purposes, the most significant advances have come as a result of the Copenhagen (1990) and Moscow (1991) meetings of CSCE. The Copenhagen Document for the first time adds provisions for political pluralism to the human rights repertory. Never before has a human rights instrument stated so explicitly that "one of the basic purposes of government" is "the protection and promotion of human rights and fundamental freedoms" (Par a. 1), nor enumerated at such length provisions for the rule of law, the separation of powers, representative government, and electoral procedures (Par as. 5, 6, and 7). The guarantees of the rights of political parties, and of individual access to public and political office without religious, ethnic, or other forms of discrimination (Par a. 7.5 and 7.6) are particularly innovative.

The other noteworthy contribution concerns the lengthy list of protections for national minorities (Par as. 30-39). Of special interest is the assertion (Par a. 30) that "questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the rule of law, with a functioning independent judiciary. This framework guarantees full respect for human rights and fundamental freedoms, [and] equal rights and status for all citizens. . . ."4(4)

The Moscow meeting, held as it was in the immediate aftermath of the failed Soviet coup of August, 1991, produced some particularly dramatic results. Above all, it broke decisively with the earlier Helsinki principle of non-interference. There was a strong tone of cultural and political relativism in the agreements of 1975 that obviously reflected Cold War realities. Parties to the Helsinki accords agreed to disagree about one another's domestic polities and internal practices. But by late fall of 1991, all parties, including the FSU Republics, agreed to the "Moscow Mechanism," which was an elaborate, and potentially quite intrusive, supranational human rights monitoring system (Par as. 1-16). The Preamble to the Moscow Document states:

[Participating States] categorically and irrevocably declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the state concerned.

These ringing words deliver a serious blow to the old doctrine of absolute state sovereignty and its related assumptions of political and cultural relativism. They presuppose stringent standards of cultural consensus.

PERPLEXITIES

There are numerous challenges and threats to the new CSCE framework. Indeed, I would suppose that these challenges and threats constitute the central issues with which CSCE members will have to deal in the foreseeable future. Most importantly, for our purposes, these issues call into question the putative cultural consensus on which CSCE rests.

Explosive Nationalism

Nationalism is not necessarily a threat to the cultural and political unity implicit in the CSCE process. The impulse of a "people," whether they are defined by religion, language, genealogy, geography, or whatever, to organize themselves politically may take "nonaggressive" as well as "aggressive" forms.5(5)

It seems clear, though, that the distinction between a form of nationalism that is benign and pacific, both within its borders and outside, and a form of nationalism that generates hostility and resentment at home and abroad, rests precisely on the degree of compliance with prevailing human rights norms.6(6) Accordingly, all forms of ethnocentrism, insofar as they inferiorize outsiders by sanctioning the distribution of civil, economic, and other privileges on grounds of gender, national origin, religion, etc. would qualify as "aggressive nationalism." As such, they would constitute a direct threat to the CSCE cultural consensus we have been describing.

The problem is, there seem to be segments of strong support within the countries that make up CSCE for one or another kind of aggressive nationalism. Some people appear to believe very strongly that religion or language or gender should restrict access to political office, public facilities, educational opportunity, religious practice, citizenship, etc. Nor is aggressive nationalism limited to segments of the populations in Eastern Europe, and the FSU. There is also a resurgence of xenophobia and anti-immigrant feeling in Western Europe.

A related problem concerns questions of cultural and political self determination. Given the social and political context in which the Moscow meeting took place, there was special poignancy in the document's reaffirmation of the right of the self-determination of peoples. Lithuania, Latvia, and Estonia had just been seated as members of CSCE, increasing its membership to 38, and the membership rolls were about to expand again with the admission of the former Soviet Republics.

In his opening address at Moscow, US chief delegate, Max Kampelman, reflected apprehension about the process of political fragmentation. He feared that the character and spirit of CSCE itself would be altered by the proliferation of members, and he also worried that endless agitation for dividing and subdividing nations would not, in the long run, benefit anyone.

More importantly, it troubled Kampelman that aggressive nationalism seemed to be advancing in the name of self-determination. What should be done if a people "determines" against the cultural and institutional consensus associated with CSCE? Of course, so long as a deviant nation remains a member of CSCE, it is presumably subject to the "Moscow mechanism," and other sanctions that might be devised against it.

But aside from whether such corrective measures would work, there is a still more vexing question that is especially relevant to our concerns: Is the existence of aggressive nationalism so deep and so widespread as seriously to threaten undermining and frustrating the cultural consensus on which the CSCE framework depends? This is, I would suppose, a central issue for our deliberation in this conference.

Intolerance Based on Religion or Belief

Though I have touched in passing on the religious aspect of "explosive nationalism," allow me, in closing, to focus the matter a little more explicitly.

In my work at USIP on our Religion, Nationalism, and Intolerance project, I have come to the tentative conclusion that the only effective way to implement the protection of freedom of conscience guaranteed in the CSCE documents, and elaborated in UN instruments like the Declaration against Intolerance, is that religious and other forms of basic belief be both distinguished from citizenship or civil identity, and at the same time at least partly compatible with it.

On the one hand, in a polity consistent with CSCE norms, a citizen may not, for example, be required to espouse any particular religious beliefs, or have any special religious identity, as a condition of access to political office, public facilities, or to citizenship itself. This condition protects citizens from undue religious control, but it also protects religious bodies from domination and manipulation by the civil order.

On the other hand, it seems unlikely, as a simple matter of fact, that pluralist democracy of the sort mandated in the CSCE documents can thrive without an important margin of indirect support, particularly from the preponderant religious bodies in a given country. I believe, as an illustration, that whatever difficulties still remain in the US in respect to church-state relations, the fact that there existed a vigorous "free-church" tradition within American Protestantism worked to legitimate and encourage the efforts to liberate civil identity from religious control, and thereby to open the door to fairer civil treatment for religious minorities. That kind of encouragement no doubt improved the operation of pluralist democracy in the US.

Again, the problem appears to be that substantial numbers of people throughout the CSCE countries are not committed to the prevailing human rights formula for reducing intolerance. They do not share the disposition either to distinguish civil and religious identity, or to provide encouragement for the culture of plural democracy. Just how substantial and how influential such people are I am interested to hear.

It does seem clear that without significant cooperation from the religious communities, the prospects for a cultural consensus vital and pervasive enough to support the human rights objectives of CSCE are dim.

United States Institute For Peace

Washington, D.C.

NOTES

*Remarks delivered at a conference on "The New World Order and Emerging Ethical Values among the States of Europe and North America," at the US Embassy to the Holy See, April 22-23, 1992.

1. Kathryn Sikkink, "The Origins and Continuity of Human Rights Policy in the U.S. and Western Europe", CSCE Symposium on Cultural Heritage (Cracow, 1991), p. 2.

2. Some twelve years after President Jimmy Carter signed the International Convention on Civil and Political Rights, and submitted it to the Senate for approval, the Senate, in an unheralded act, finally ratified the convention in early April, 1992, together with a list of reservations, understandings and special declarations. Accordingly, the US is now subject to the jurisdiction, such as it is, of the Human Rights Committee, mandated under Articles 28ff. of the Convention. Along with a few minor human rights treaties, the US has also ratified the Genocide Convention and the Convention against Torture. The relevant regional treaty would, of course, be the Inter-American Convention.

3. Erika B. Schlager, "Does CSCE Spell 'Stability' for Europe?" Cor, nell International Law Journal, 24 (1991), 505.

4. Provisions for the protection of minorities were further elaborated in the Report of the CSCE Meeting of Experts on National Minorities, Geneva, July 1991.

5. The distinction is suggested by Isaiah Berlin in an interview with Nathan Gardels published under the title, "Two Concepts of Nationalism," The New York Review (November 21, 1991), p. 19.

6. Though Berlin advocates a nonaggressive form of nationalism as essential to human identity, and severely attacks the ideals of cosmopolitanism and universality as contrary to the need for specific communal identity, even he (somewhat inconsistently, I think) affirms "a new set of common values--ecological rights and human rights--that can to some degree unite all these erupting cultures without cramping their style" (Gardens' words). Says Berlin: "Unless there is a minimum of shared values that can preserve peace, no decent societies can survive" (ibid., p. 22). It is not clear why the common values (including human rights) he advocates as constraints on nationalism (with a high probability of "cramping the style" of certain cultures) are not themselves "transnational," that is, cosmopolitan and universal. If so, it is not true that human identity is derived exclusively from particularistic communal experience.