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Claims of Imperialism: the Common Legal Basis of Anti-Imperialism in International and Regional Human Rights Organisations

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Claims of Imperialism: the Common Legal Basis of Anti-Imperialism in International and Regional Human Rights Organisations ORBIT-OnlineRepository ofBirkbeckInstitutionalTheses Enabling Open Access to Birkbeck’s Research Degree output Claims of imperialism: the common legal basis of anti-imperialism in international and regional human rights organisations https://eprints.bbk.ac.uk/id/eprint/40234/ Version: Full Version Citation: Cowell, Frederick (2017) Claims of imperialism: the com- mon legal basis of anti-imperialism in international and regional human rights organisations. [Thesis] (Unpublished) c 2020 The Author(s) All material available through ORBIT is protected by intellectual property law, including copy- right law. Any use made of the contents should comply with the relevant law. Deposit Guide Contact: email Claims of imperialism: the common legal basis of anti-imperialism in international and regional human rights organisations Frederick Cowell Submitted as part of the requirement for Doctorate in Law Birkbeck, University of London 1 | P a g e DECLRATION The work presented in this thesis is my own work and is submitted as part of the requirement for the degree Doctorate in Law Signed Frederick Cowell 2 | P a g e ABSTRACT Opposition to an international organisation with legal powers to protect human rights describes both the legal process of non-compliance with an organisation and political attacks on the organisations legitimacy. Opposition is caused by an organisation’s legal structure, in particular the powers that organisations have to encourage compliance with international human rights law. This study examines anti-imperialist opposition – which is opposition broadly predicated on the notion that human rights law and its enforcement are a continuation of colonial-imperialism or a form of neo-imperialism. When analysing opposition from the Third World bloc and other postcolonial states within the UN Commission on Human Rights and treaty bodies, it is possible to discern a distinct form of anti-imperialist opposition. This was in part because of international law’s origins in the colonial-imperial era and the perpetuation of inequalities between different states after decolonisation. But forms of anti-imperialist opposition continued in regional organisations, such as the African Commission on Human and Peoples Rights, created outside of this broader imperialist context. This study concludes that there common elements in the legal structure of human rights organisations which are predicated on an imperialist form domination. This explains the persistence of anti-imperialist opposition which is a major factor affecting the functioning of international human rights organisations. 3 | P a g e TABLE OF CONTENTS Acknowledgements and Dedication 5 Introduction 6 Chapter One: Understanding Institutional Opposition To Human Rights 23 Organisations (i) Sovereignty and the ‘global script of legitimacy’ : Why states join 26 organisations with protection mandates (ii) Institutional Opposition: The ipsetic potential of a protection mandate 36 (iii) Anti-imperialism and institutional opposition: the symptoms of sovereign 48 inequality Chapter Two: Ideological opposition and anti-imperialism 68 (i) What is ideological opposition? 73 (ii) Anti-imperialism and the ideology of international human rights law 80 (iii) Anti-imperialist ideological opposition to human rights organisations 91 Chapter Three : Opposition at the UN Commission on Human Rights and Human 109 Rights Council (i) Anti-imperialist opposition to the UN Commission on Human Rights: 112 1967-2006 (ii) Anti-imperialist opposition at the UN Human Rights Council: 2006 131 onwards Chapter Four: Opposition within the African Human Rights system 145 (i) The African Charter of Human Rights and the decolonisation of human 150 rights law (ii) Opposition to the African Commission on Human and Peoples Rights 156 (iii) Pre-emptive anti-imperialist institutional opposition to The African Court 170 of Human Rights (iv) Direct anti-imperialist institutional opposition: Regional Economic 175 Community Court’s and the protection of human rights Chapter Five: Inherent imperialism and the legal structure of human rights 182 organisations (i) The negative universal reference, international law’s universalism and 185 colonial imperialism (ii) The negative universal reference in the legal structure of human rights 191 organisation’s protection mandates (iii) The inherent imperialism of a protection mandate 203 (iv) The historical context and organisational design: diminishing the impact 210 of protection mandate’s inherent imperialism Conclusion 222 Bibliography and Table of Cases and Instruments 228 4 | P a g e Acknowledgments I owe a great debt of gratitude to Professor Patricia Tuitt for agreeing to take over as my supervisor and for steering me through the last stages of writing this work. She is an excellent boss, colleague and mentor. Professor Peter Fitzpatrick, my original supervisor, helped shape my ideas and taught me so much and the final product was heavily influenced by the many tutorials, reading groups and friendly chats in the pub with him. The inspiration for this work came whilst I was working for the Commonwealth Human Rights Initiative (CHRI) and the Commonwealth Secretariat and I am grateful for the experiences and the opportunities I had to work with many of the international organisations detailed in this study. My Birkbeck friends and colleagues, in particular Bill Bowering and Roberto Yamamoto, provided invaluable advice at points and I would also like to thank Daniel Whelan and Costas Douzinas who when I presented some of the papers that eventually turned into chapters in this study provided invaluable criticism and advice. Laura Lammasniemi, Angelina Milon, Fletch Williams and Madeline Schultz were friends who helped edit and advise on technical points and to whom I owe a big debt of gratitude. Finally I would like to thank my long suffering family, in particular Rosie, for their patience and Birkbeck College for providing some generous scholarships that enabled me to carry out my work. Dedication Dedicated to the memory of my Grandmothers, Audrey Falconer and Patience Prashad, who lived through the end of empire in England and India and left a grandson fascinated by it 5 | P a g e Introduction “What right have you to tell these lies?” yelled the High Commissioner of Papua New Guinea at the assembled delegates throwing down a report from the Commonwealth Secretariat. It was a Tuesday afternoon in 2009, at the Democracy and Human Rights session of the Commonwealth Heads of Government Meeting‘s (CHOGM) – a pre-meeting forum for foreign ministers to discuss various human rights issues. Polite awkward mummers from the massed foreign secretaries, officers of Non-Governmental Organisations, and bureaucrats greeted the High Commissioners outburst.1 Marlborough House in Mayfair created suitably luxurious surroundings for an impressive-sounding-but-otherwise-boring meeting of the organisation. The High Commissioner continued lambasting the report (which criticised some aspects of Papua New Guinea’s criminal justice system) calling it “colonialist.” Feet shuffling and coughs greeted this and the Chairperson diplomatically tried to move the meeting on. What was going on that rainy Tuesday afternoon was an example of anti-imperialist opposition to a supranational organisation with a mandate to protect human rights. A supranational human rights organisation is an organisation with legal powers to protect human rights within sovereign states. It can exist at either a regional or an international level but the most important feature is that its legal authority is independent from its member states. Opposition broadly describes the process where a member state of an organisation attempts to impede its operation. Sometimes a state’s refusal to cooperate with a human rights organisation is an attempt to promote a particular ideological cause. In other cases, opposition is a reaction by the non-cooperating state to the perceived encroachment of an organisation upon their sovereignty. Imperialism is an important cause of the seeming dysfunction of international law and explains why some states oppose the application of international human rights law and the organisations created to enforce it. To understand imperialism it is necessary to distinguish inherent imperialism from the imperial context of international human rights law. The criticism that human rights organizations are imperialist is often made by postcolonial states - countries that came into being through the legal process of decolonization in the twentieth century. International law evolved in the context of sixteenth century colonial-imperialism and 1 The author of this work was one of those NGO delegates. 6 | P a g e was formalised into system of law that bound states in the late eighteenth century. International law in this period excluded those entities that weren’t states and justified colonial rule. International organisations, which emerged as distinct entities in international law in the early twentieth century, preserved the powers of many colonialist states building on its colonial-imperial foundations. This is the imperial context of international law and was the basis of much of the criticism from postcolonial states that international organisations with the power to protect human rights were imperialist. Their legal structure preserved colonial- era inequalities and enforced a set of laws that predominantly reflected the interests of formerly colonialist states. But even when postcolonial states attempted to construct
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