Emilie M. Hafner-Burton is the director of the Laboratory on International Law and Regulation at UC San Diego and John D. and Catherine T. MacArthur Professor of International Justice and Human Rights at UCSD's School of Global Policy and Strategy. She is also a joint professor for the political science department. She was interviewed by Isabella Speciale '17 and Christina Yoh '18 on Nov. 16, 2015.
That's never been the focus for the United States government, but it is the area where the Chinese have made the most progress, in economic growth and the provision of a better quality of life and a growing middle class. The United States' focus has always been on civil and political rights, and on this level, the Chinese government is struggling. That includes everything from censorship and the lack of free information to the fact that there continues to be systematic torture, terrible behavior in the prison system, to killings by the government, and the general lack of civil and political rights for citizens in addition to extreme poverty and environmental situations that are occurring. Those have always been the United States' primary focus with regards to rights, but there's a really big interesting discussion about whether that's the right focus or not and whether the way you develop rights in a country like China is through a positive form of engagement or through coercive form of engagement.
For example, we tried for many years with the Chinese government to attach human rights provisions to their MFN (the most favored nation status) as a means to essentially use economic tools to push forward human rights. That didn't work so well. That was perceived with tremendous resistance, so then there's the question about whether or not you use positive forms of diplomatic engagement but put pressure on the government at the same time in order to liberalize. So the Olympics was a really good example of “would the world step up and actually go to the Olympics?" Because many of them, in the case of Russia, did not show up in protest of Russia's decision to not advocate for gay and lesbian rights. We did show up to the Chinese Olympics, we used it as an opportunity to try pressure and that failed to produce any meaningful backdrop. So it's interesting to have discussions about which rights we should be focusing on, whether the way you get better quality of life in China is, in fact, through economic growth — political rights are not something we need to push as hard on, or if in fact, that's not the right answer, and that you have the rise of the growing middle class in China and a rise of consumer power, but you still have a centralized party that is fundamentally oppressing basic civil and political rights of the people. So it's a real debate.
What kind of things does the U.S. have to consider when intervening in human rights issues in Asia? What are some of the strategies they need to keep in mind — different ways of implementation — from a diplomatic perspective?
So I think there are several. One is what we just talked about, which is that we have tremendous cultural differences in what we define as the core human rights. When you look at the main human rights system, there are these things called civil and political rights, and these things called economic, social and cultural rights. We have treaties that embody both of these at the global level, not at the regional level in Asia yet. At the global level, we have a fundamental difference in opinion; the United States has always supported civil and political, and there has always been something called "Asian values." I actually don't like that term, but that is the term that is assigned to it, which suggests that we should be focusing, not on civil and political rights, but on economic, social and cultural rights. Not on individual rights, but on collective rights. That is something that the United States government needs to be aware of, not just in China, but actually around the world. Because when you push a particular type of human right and you meet literally cultural resistance to the notion of the right, you are not going to succeed in spreading that right.
In China, like every other country, the only way institutions, governments and actors are really ever going to change human rights in those locations is to make the government believe that protecting human rights is in their interest. There are a lot of ways to do that, and this again returns us to the discussion about the Chinese economy and whether you grow a middle class or not — that is what actually leads to more demands for foreign direct investment, and that requires better political institutions and stability. Repression often times undermines that, so it's the hope that maybe you get to that avenue through the propelling of economic growth. There are very big differences in diplomatic styles in this country, quite obviously, in terms of how different leaders have chosen to approach the situation very differently. Bill Clinton used MFN status to push for human rights — that didn't work so well. Obama, much more engagement. Hillary Clinton, much more engagement. I don't know what will happen after the next election, but things may look very different. But China is not going to be strong-armed through economic policy by the United States, we're too intertwined and interdependent, so the question is 'what are the tools that we have?' We cannot use punitive methods but need to engage the Chinese government at its various different levels to convince them that human rights is in the Communist party's interest. Until that happens, we're not going to be particularly influential, but I believe it's already happening.
Could you just elaborate a little more on the broader implications of a term like "Asian values," and how that can affect the relationship between two parties when you're giving this broader term to a region that obviously has such nuance? Are there any human rights implications on that or oppressive connotations?
I think the connotation, first of all, is completely inappropriate, but it is the term that's used. So I think rather than focusing too much on the term right now, the important thing to understand is that there really are very different viewpoints about what a human right is. By law, human rights are for everyone. They are universal concepts, and they are indivisible. That means we're not supposed to pick and choose amongst them. Culturally, that's a very hard thing to pull off because different cultures embody different sets of norms and embody different kinds of histories. What might seem repression to you, might not feel like repression to me. I can give you several different examples where this might come from. One would be the veil in France and whether or not it is a violation of my fundamental right to religion that I am not allowed, as a girl, to wear a veil in the French public school system, or whether or not that is actually discrimination against women, that I would in my household be told that I need to wear the veil. Whose rights are being violated? There is no objective answer to this, so it's really at the essence of this argument that people call "Asian values."
I don't think it has anything to do with Asia at all. I think there are different cultures that really do embody the better way to think about this — the sort of focus on individual rights versus the collective rights that may belong to communities. No culture fully embraces equally all types of human rights, and that's what the debate is over. When it comes down to a policy perspective, that really matters again because it lets you know which rights are worth focusing on.. Understandably, those are very sensitive issues. When a person is tortured, a person is tortured, and those rights have been violated. But there are so many examples where it's not always perfectly clear whose rights are and who is correct about that situation. West lecturing the rest is not always effective in actually changing people's belief systems.
From either the perspective of U.S. nationals or people abroad, when the U.S. promotes human rights in other countries, are there concerns that the U.S. has ulterior motives? Is that something that could lead to a lot of rejection of this projection of human rights if there's an idea that it's being imposed by an oppressive force with ulterior motives?
It's a great question, and it's a complicated one. So the very simple answer is yes. Yet, it's not just the government, it's the people who have to embrace the concept of human rights. It might seem a little counter-intuitive, but people can be very split in understanding which rights they themselves feel need to have protected. So again, when a person is being tortured, a person knows they're being tortured. Nobody wants their body to be tortured; those things are really not in question.
Questions about religion, about access to education, about the veil, many of these more cultural issues, you find tremendous disagreement, even in the people who do not believe they are victims. And yet international law is telling you that you are a victim or the United States is telling you you are a victim, and that is not the way you and your society see that picture. That can be incredibly dangerous because if you attempt to have interventions in other countries on policies where you don't have buy-in, both from the communities you are attempting to help and from the authorities that are regulating them, you can actually do big-time damage.
One of the arguments that I made in the last book that I published and that I think is really worth exploring is something called 'localization,' which is to say for governments like the United States, but like many others who genuinely are in the business of promoting human rights, they only do it when it's in their interest to do so. So governments aren't usually acting as moral actors, but they do have genuine interest sometimes to actually attempt to promote human rights. For governments that are in the business of doing that, the only way they can do that without creating more violations of human rights in essence in the places they're going into is to have local buy-in. They have to be not coming from the outside and saying "what you're doing is wrong and bad, and we're going to fix it," unless the victims on the ground are demanding it. That's why I said 'but' because this is where it gets much more complicated. If you are in a society, and there are many that are like this, where you are fundamentally repressed by the government, by whatever that actor is, you know it, you believe it, and you need access to help, but you're not going to get it from your own government or institutional system, the best way to do that is often times to circumvent. We call up the "boomerang effect," and it's to go and find help from actors that are sympathetic to your cause. That might be a government, that might be the United Nations, that might be Amnesty International, that might be any other manner of actor who can try and figure how to intervene on your behalf. It can go both ways, but it's a dangerous game because if you don't get local buy-in, you can get backfiring. In order to get local buy-in, you have to have some connections with local communities, and that's not always very easy to do. North Korea would be a very good example; I can promise you there are people in North Korea who know that their fundamental human rights are being violated. Those people don't really have access to Amnesty International, they don't have access to the ear of the U.S. government in any great detail, they don't have access to remittances through the United Nations. They are in a very bad position, but I can also promise you that there are probably people in North Korea who, when intervention occurs in its various ways through South Korea or China or the United States government, are upset about the way human rights are being spoken about with regards to the behavior of North Korea. It can cut both ways, and that makes any kind of foreign policy intervention in human rights really tricky.
Going back to these broader organizations that you talked about — something like the U.N. How effective are they in implementing a lot of social change if there isn't that government buy-in? Maybe the people are demanding it, or it's just a blatant disregard for human rights, and that needs to be adjusted.
So this is also a very complicated question with different components that vary very differently across different types of societies. We can stick with the really hard one and move on to the really easier ones. Let's stick with North Korea for a moment. North Korea is not embedded in the institutions of the United Nations in a normalized way for the obvious reasons. Very recently, the United Nations gave permission to International Criminal Court to do a bunch of investigations of the massive violations of human rights that are occurring in North Korea. The North Korean government did not give them the permission to do this; nonetheless, the United States, with the help of the prosecutor of the ICC, did this. The reason that they did this is in the hope that at some point in time, Kim Jung-Un is no longer going to be the ruler of that country, and there will be internal fractionalizations. When that happens, they will have a paper trail that will indict him. Somebody will arrest him, he will sit in a prison in the Hague, and he will be tried for crimes of humanity. Will that ever happen? I don't know, but that's the process that the United Nations has put into place. If the process works that way, that would be very effective.
What role does U.N. have right now today in ameliorating human rights? Very little, so they're playing very long-term strategies and long-term games. But this looks very different for other types of countries that are making commitments to different types of legal institutions that genuinely want to make a commitment to human rights but don't necessarily have the internal capacity to implement those commitments. So it's one thing to want to violate human rights and repress so you can stay in power. It's another thing to recognize that your government is going to undergo a transition. Myanmar is a very good example of this right now. There is internal understanding that they have to fix some of their human rights problems because it's causing massive security problems. So that's why they've released Aung San Suu Kyi, that's why they have different political systems that's now taking place. It's in the military's interest to actually do this. What direct role the United Nations can play is hard to say, but those are precisely the types of places that these types of places these institutions have the ability to potentially support, again not through punitive means, the process.
So Myanmar, as it opens up, as it participates in very few of these institutions, but it will start, and will be making commitments to do things like writing reports on its own human rights situation. That's going to put into place a process of information building and information exposing that will both allow the government to analyze its own situation but also draw in expertise from the region and you have a lot happening from Indonesia, for example, who has been very close with Myanmar in trying to figure out how to buildup its human rights capacity. Those institutions have the potential to be a little bit more helpful in the short term. Then you have countries outside of Asia that look like Chile, for example, where you have very solid democratization processes that are occurring, but you still have old school, old scale regime types that were vestiges from when there were dictators in charge and people were tortured. There we can show really quite direct effects that could commitments to these legal institutions can have direct, positive impact on human rights. Again, it's not overnight, but it's a short term and ultimately a longer term effect. How these institutions work really depends a lot on the structure of the government and the stage that they are at in their development of wanting to process human rights.
So, just shifting the focus to China in particular, it’s no secret that they’re serial violators of what the international community would regard as human rights. There has been a lot of backlash internationally, efforts by U.S. presidents in particular to try and implement some change, but it just doesn’t seem like a lot of this is happening, certainly not at the pace that people would like. In your opinion, could that be a reflection at all on the international community or the U.S. as a whole losing an ability to influence other states, particularly when it comes to human rights? Is it a reflection of a growing hegemony in Asia that is now a major competitor with the United States?
I’m honestly not sure that the United States has ever had the ability to have much leverage over China with regards to human rights. There’s no question that China is on the rise. But the United States’ and the Chinese economy are intertwined in ways that are more fundamental today than they ever have before, and, if anything, that will either have a neutral effect, but could potentially have a positive effect. But not through the punitive mechanism, it’s very unlikely. But through engagement processes. So, I’m actually hopeful that over time it is precisely that intertwined-ness in the economies that there will be different valuations of human rights as more and more multinational companies. Not just in the United States, but from the EU. That doesn’t mean all companies are perfect protectors of human rights, but there are big differences there. So there are a lot of mechanisms through which globalization isn’t a bad thing for the development of human rights, but is actually a positive development for human rights. So, I’m not sure that the United States will ever really have much leverage, but I don’t think that we ever have had much leverage in this regard.
So then going off of that a little bit, do you think that this economic relationship between the two states and this Chinese desire to improve their economic status in any way possible could ultimately result in a disregard for human rights? In terms of how productive factories can be if their workers are not necessarily taken care of as well as they should be and that ‘succeed at all costs’ mentality — do you think that that could be a major hindrance in improving human rights standards?
I think you’ve hit the nail right on the head in many regards, and this is not just a China problem, it’s global. Which is to say that we again return to this concept of having different types of rights, and our legal and normative structures telling us that those are universal and indivisible. And yet, the reality is that oftentimes the development of those different types of rights are actually incompatible. So that is to say, if you want to gain economic development, what you’re suggesting, quite rightly, is that one way to do that is that companies move in, they outsource, they use lower labor standards — we all know about the scandals with Apple that occurred in Chinese factories — and so it is precisely driving the process of economic development that you are undermining the rights of workers in these countries. The nuance arises there when you ask what is the alternative for those workers. So, would there have been a better alternative for Chinese workers short of the foreign direct investment that is coming from other nations, that still may have lower labor standards, but those labor standards are not as low as they would otherwise have been.
And this is another area that there’s no right answer. There are very different perspectives, but there’s no objective truth to which is the better one of not. If I take my factory to Vietnam and I pay you $5 a day, is that undermining your fundamental human rights when the local factory would have paid you $1 a day? Yes or no? We don’t know. There’s no fundamental answer. But it is a very important point that one type of right can undermine another. And I’ll give you one more example, this is not pertinent to the Chinese context, but certainly to some of the other countries in the Asian context and the world, and that’s elections. Most countries in the world hold elections at some level of government. Many countries are not holding elections because they have any desire to actually transition themselves out of power, they’re doing it for a whole variety of other reasons. So they need mechanisms to keep themselves in power despite the fact that they have to hold, what probably won’t be free and fair obviously, but what might appear to be competitive elections of some level. And it is precisely the right to free and fair elections, which is a human right we’re pushing in these locations, because without the right to vote for their own government, governments can use violence as a means to actually squash the competition. And so it’s another sense in these rights that we can’t distinguish between morals and ethics in that the sort of philosophy of human rights and the legal structure of human rights, can actually at times, work in opposing directions. And the complications with that is that it then requires you not only to recognize the trade-off, but that you make a determination as to whether it’s the right one. Do we just simply push an economic development in China right now because the best possible hope we have of a longer, broader-term development? Or, is that very form of development simply going to strengthen the central party, who will then simply strengthen institutions to crush down any opposition? We don’t know.
So what role do you think the media can play in inciting or implementing change? In places like China, how do you think the media exposing human rights issues can be a major reason for change or a cause for reevaluation of government policies?
So there’s no question that at the very heart of what the human rights system does, there’s no enforcement. Unless states are literally intervening in each other, which they do very infrequently at great costs, and often with radically worse human rights violations by using military intervention. You need different actors to provide you with information about what those violations are. The media is one source among several where that information can come from. I think you’re probably asking about the media in a broader sense, I would certainly think about it in a broader sense, which is what does the NY Times correspondent say. But social media — who’s posting what on Youtube or any of the other alternative social media mechanisms — can be used to put information on the table. So it’s both incredibly important what the media reports, because that’s a central part of information that informs these actors who can be pro-human rights constituents. Whether that be for a government, the international organizations, Amnesty International, etc. Media’s role is absolutely crucial.
However, it is also extremely biased. So there is a complicated picture as to what we can actually learn from the media. But it’s crucial to have people inside China, inside any of these countries, providing information about what’s going on on the ground. Whether that be through the bureau chief or whether that be through a cellphone that they upload onto Youtube. There is big problems, however, with this, because it’s complicated. So in addition to the fact that we know media has bias, and that bias is therefore informing the central mechanism by which we enforce the system, that’s also true for people. So, it’s very easy to upload images or information on cell phones that are inaccurate. It’s very easy for rebel groups to use social media to try and show human rights atrocities that they themselves have created for the purposes of getting social media. So it becomes quite complicated, it’s not a neutral, great, positive development that all of the sudden we can post stuff up on Youtube. But particularly in the case of China, there’s a tremendous amount of information available now that wasn’t available before. And I have some colleagues at UCSD, one in particular named Molly Roberts, who does phenomenally interesting work on censorship in China. And they’re finding ways to utilize all these technologies to actually systematically figure out what it is that the government is actually censoring. Because a lot gets uncensored, a lot gets through without censorship. So they’re doing that in the hope that they can try and figure out where are the patterns, and where freer and fairer information is actually possible. And that’s crucial because there’s an enormous marketplace in China for information — a huge middle class wants information. And technology is allowing them to circumvent, more and more frequently, government attempts at censorship. Information is power.
So you touched upon how the media obviously has an inherent bias, and a lot of the ways that the media can present human rights violations don’t necessarily portray them in the most positive, most productive light. What is your ideal method of gathering information? What would be the best way to get information, particularly in places where there’s very high censorship? Obviously the social media aspect can hurt sometimes a lot more than it can help, but do you think giving the power to the people, for lack of better words, is a huge benefit?
I think it’s a huge step forward. And when I say the media are biased, I don’t mean that individuals are sitting around thinking ‘Oh, well, I’m not going to report on that country.’ It’s really inherent; it’s really systemic. But my ideal world is triangulation. And triangulation means as many sources as possible. So absolutely empower the people with technology, but there’s no such thing as objective human rights information. It doesn’t exist. If you die, you die, and that’s a fact. But in terms of my reporting at the country level on China, or any other country that we’ve talked about, we’ve already agreed that there’s a lot of differences in opinion about what’s a violation and what isn’t and how bad something is and how not, and also how easy it is to observe that thing that’s going on. And because of that, we just need as many sources of information as possible. So we need NGO’s reporting on these things, and we need to evaluate those, not as if they’re neutral, objective sources, but as one group of very important actors who are very good at getting information off the ground because they have, in so many locations, people on the ground. They’re the first hand observers. And so that’s incredibly important. We need the media, even if they’re biased in terms of how they’re reporting, to be putting this information out into the world. We need people to be uploading the atrocities that are occurring around their villages or in their towns, or post their elections, or whatever their situations might be, up on Youtube. We need the United Nations main human rights bodies to be publishing annual reports on every country around the world. We need all of these pieces of information. We need companies to be publishing their CSRs, Corporate Social Responsibility reports. And instead of just taking any one piece of information as the source, we need to look across the range to understand where we see differences of opinion, and thus questions about the reliability of that information, or how we should interpret that information, and where we see actors converging on a singular source. But certainly in China, the Chinese government very likely isn’t going to report itself instances of its own abuses. But you know what? The U.S. government doesn’t either. China every year published a report on the U.S. government, outing U.S. violations. And the U.S. government publishes the same report on China every year outing their violations. And that’s all a very interesting discourse, it’s another form of information, nothing objective about either side clearly. So, really, the ideal is triangulation. As many sources as possible, and then understanding what the patterns and bias are in each source.
Latching onto that idea of the different reports being published, do you think that in itself is a way of nations holding each other accountable? Do you think, alongside economic development being a competitive international force, do you think the same could be said about human rights?
Absolutely, it’s one of the core mechanisms for how you enforce or how you spread the norms of this system. Information has to be central and shaming is a key part of it. No government really wants to be told that it’s a bad guy. China wants to have, and does have, a really important role to play. Not just in the region and a hegemon, but in the world. It wants to be liked. So it doesn’t want to be shamed by the U.S. government. And the U.S. government is hypocritical, because we’re off running around writing reports about everybody else, but not ourselves. But Amnesty International is writing reports about the U.S. government, China is writing reports about the U.S. government, so it is a system of shame. But the flip side to that of course is state sovereignty. I can raise the issue, I can put it in the public space, I can shame you, but at the end of the day, you do have to care that you’re getting shamed, more than the benefits that you’re receiving. In the U.S. case, for example, since, I believe 1984, through the Trade Act Policy of Congress, Congress has required the State Department by law to publish a report on every single country that we have normalized relations with. And those human rights reports are utilized to inform congressional policy on everything from trade policy to aid policy. Now, in the Chinese case, we’re not sending a lot of aid to the Chinese government. We’re not sending any aid to the Chinese government. Our trade relations are never going to be threatened because of human rights violations, or are unlikely to be threatened by human rights violations. But in many other countries around the world, that’s not true. Countries are losing aid from the U.S. government because of their human rights policies. And these reports are what’s outing that. So China’s an outlier in this regard. But the shaming is an important part of the process. It’s not always especially effective, but it’s an important part of the process.
In your book, Making Human Rights a Reality, you talk a lot about promoting human rights through groups of states or this idea of “stewards” who set priorities. They can distribute resources accordingly and gain tangible benefits. How do you suggest this mechanism or procedure begins? Is the U.N. sufficient? Is the U.S. sufficient? Are countries going to be willing to work with each other in terms of providing necessary resources to implement change? Any NGOs or national institutes that would be involved, especially in Asia? What does that process look like?
Nothing is simple. The argument that I wanted to make in that book is not so much that states should be stewards, although I think we can make that argument as well, but that many states are already acting as if they are stewards. So, for better or worse, the United States government is running around out there and engaging in human rights related foreign policy in a variety of different countries. The European Union is doing the same; there are quite a number of states that are out there doing it. And the big concern is that this can be done hypocritically. This can be done based on concerns that are much more about national security than they are actually about human rights and the people involved. And, frankly, I think, much more frequently, it can be done with very good intentions and very terribly carried out by the governments intending to promote human rights. And so, the question is really to take a step back and say "OK, well, we know governments are already in the business of doing this, and they’re not going to stop." There’s real interest for governments to do this. But they’re potentially causing a lot of harm in the way they’re doing this.
So what does it need to look like for any of these governments, in any region, who decide they want to promote human rights to actually go and do that in a way that would be more effective? And this returns us to our conversation about globalization. This returns us to our conversation about not imposing from the outside a right, where there isn’t actually a pro-rights constituency on the ground seeking help. It is so important that stewards, whether they be the states, whether they be the NGOs, whether they be the U.N., have to have local buy in. Otherwise the West tells the rest. And there’s nothing in this notion of stewardship that says it has to be the West. And that’s where I think I would be happy to make a normative argument, that there should be more states in this world stepping up with good human rights policy. The last thing we need are states stepping up with bad human rights policy. There should be more states in regions, it should not be the United States lecturing the rest of the world. There should be local leaders in Asia who are leading this movement. There are, through ASEAN. There should be local leaders in South America who are leading this movements. Local leaders in each of these locations who are seeking to steward their interpretations that are culturally appropriate and culturally acceptable and consistent with needs of the actual victims on the ground. That there are so many vacuums is a problem. But it really is those two components: how do you get states to make smarter policy and can you get more states actively involved in thinking about the importance of actually promoting human rights as a national interest.