State Human Rights Foreign Policy: Protecting Human Rights Abroad

Abstract

In the following, human rights foreign policy will be considered separately, as the corresponding policy processes differ in various respects from the implementation of human rights obligations at home.

In the following, human rights foreign policy will be considered separately, as the corresponding policy processes differ in various respects from the implementation of human rights obligations at home.

4.1 Extraterritorial State Obligations

First of all, the question arises to what extent it is incumbent upon states, or they have an obligation to respect, protect and promote human rights in other states. Does a state’s responsibility for human rights end at its borders? Intuitively, there is already much to be said against this. Does it not correspond to our general understanding of human rights that human rights bind the state’s actions as a whole, regardless of whether they take effect in one’s own country or elsewhere? In terms of international law, this is not so clear-cut. Traditionally, states are primarily responsible for the human rights situation in their own country (territorial state obligations). There they can—ideally—guarantee the most effective legal protection possible. However, it is disputed to what extent states have human rights obligations in respect of people living outside their territory (or not under their sovereign jurisdiction), i.e. to what extent they have human rights obligations as actors acting internationally (extraterritorial state obligations, ETOs) (one of many: Gibney et al. 2022).

On the one hand, the scope of application of such ETOs is controversial: Do they only apply to situations in which the state exercises effective control over foreign territory and over persons there? An extreme example is the use of torture against terror suspects in foreign secret prisons, as practised at times by the USA and the United Kingdom, among others, in the context of the fight against terrorism.¹ Or are state actions or omissions also covered that have a negative impact on the implementation of human rights in other countries without such control? For example, foreign economic activity can also have a negative impact on human rights. Or do extraterritorial obligations already exist if the state, individually or in international cooperation, is in a position to significantly influence or implement measures for the implementation of human rights in other countries?

Equally controversial is the question as to the extent to which the various obligation dimensions (respect, protect, fulfil) should also apply extraterritorially. It is increasingly recognised that states must not themselves violate human rights in their bilateral and multilateral relations (do-not-harm approach). However, there is no consensus on the extent to which they are also obliged to protect human rights in other countries² or to promote their implementation. Even when governments acknowledge their human rights responsibility, they do not seem to want to be legally obliged to do so.

However, the UN Charter provides for a global obligation of international cooperation to promote universal respect for and realisation of human rights (UN Charter, Art. 56 and 55). The reference to international cooperation is also found in UN human rights treaties, most clearly in the ICESCR. In it, States Parties have committed themselves

to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the Covenant (ICESCR, Art. 2 para. 1).

Accordingly, the ESCR Committee and several UN Special Rapporteurs on ESC rights repeatedly refer to corresponding international obligations of states. In 2011, around 40 human rights experts from the United Nations, academia and civil society adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights.³ It is the most comprehensive reference framework for extraterritorial obligations of states to date and interprets them quite broadly.

It should be noted, however, that ETOs merely describe an additional dimension of human rights protection. They do not relieve states of their own domestic obligations. Each state still has primary responsibility in its own country. Nevertheless, the discussion on ETOs has had a significant impact on the development of human rights, as it is ultimately about the human rights orientation of international action in the context of global problems (Table 4.1).

Table 4.1 Extraterritorial obligations of States in the area of economic, social and cultural rights

4.2 Diversity of Human Rights Foreign Policies

Whether as an expression of legal obligation or political responsibility, whether value-driven or more interest-driven, many governments pursue an active human rights foreign policy. It is obvious at first glance that human rights foreign policy differs considerably even in liberal-democratic states in terms of motivation, addressees, goals, measures and effectiveness. To put it simply: foreign policy on human rights in Austria⁴ is different from that in Brazil (after the democratisation of the country)⁵ or in South Africa (after the end of apartheid).⁶ Depending on the country, it takes place under completely different conditions and in completely different political contexts, which must be examined case-by-case. There can also be major differences in human rights policy between the respective governments of a country.

The extent to which autocratic governments also pursue a human rights foreign policy in the sense of the ambitious understanding of human rights policy advocated here is more than doubtful. The repressive Chinese one-party state, for example, not only systematically violates human rights at home, but also pursues an obstructive policy in international human rights institutions. It also propagates its “very own” understanding of human rights in international forums.⁷ The Russian government⁸ has completely discredited itself as a serious international human rights actor at the latest since the brutal war of aggression against Ukraine. However, the autocratic governments there—as well as others—must adopt a foreign policy approach to human rights and deal with human rights criticism.

Certainly, the foreign human rights policy of liberal democracies often exhibits ambivalences. This is especially true of the USA, which on the one hand has been a driving force for international human rights since the mid-20th century, but on the other hand has repeatedly provided economic and military support to regimes that violated human rights—from Pinochet in Chile and the Somozas in Nicaragua to Marcos in the Philippines and Suharto in Indonesia, to, especially under US President Trump, Saudi Arabia. In addition, the USA has itself committed human rights crimes abroad, for example, as part of the international fight against terrorism. Above all, the multi-layered and ambivalent US human rights policy offers researchers a wide field of activity and has produced numerous studies.⁹

Not nearly as much political as academic attention was paid to the far less influential foreign human rights policy of the Federal Republic of Germany, to which the following remarks are limited as an example.

4.3 Fundamentals of German Foreign Human Rights Policy

In numerous official documents and statements, German federal governments have identified human rights as the core of a value-led and interest-led foreign policy. The current federal government, which has explicitly committed itself to a feminist foreign and development policy, speaks even more accentuated of a “values-led, human rights-oriented foreign and development policy” (Deutscher Bundestag 2022, p. 144, own translation).

In Germany, the mission to respect and implement human rights is derived from the Basic Law, namely from Article 1 (1) of the Basic Law: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”. Article 1 (2) of the Basic Law places this obligation in an international context: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world”.

The mission continues to be based on membership in international organisations (United Nations, Council of Europe, etc.) and is founded on numerous international and regional human rights treaties that Germany has ratified. They emphasise the international human rights responsibility of states and, as explained, contain “extraterritorial state obligations” (ETOs) that are ideally enforced. Even though previous federal governments have struggled to recognise such ETOs, they have always acknowledged their international human rights responsibility and have pursued an active bilateral and multilateral foreign human rights policy in various thematic areas, embedded in the Common European Foreign and Security Policy (CFSP) and in the institutions of regional and international human rights protection.

4.3.1 Outline of the Actor Landscape

Traditionally, foreign policy is the domain of the executive, also in the field of human rights. Heads of government and foreign ministers usually shape a country’s human rights profile in the public eye. This is also true for Germany. The question of whom the respective officeholders meet and the extent to which they take a stand on human rights policy issues is a constant source of public debate on the significance of human rights in foreign relations. However, human rights policy is not limited to the high-profile appearances of high-ranking members of the government. The Foreign Ministry and its missions abroad continuously observe and assess the human rights situation in other states and have to implement human rights policy in everyday detail work.

In principle, it is the responsibility of the Federal Foreign Office to bundle and coordinate foreign policy activities in the field of human rights. It is the department responsible for bilateral and multilateral human rights policy, both within the framework of the CFSP of the European Union and in the corresponding bodies of the United Nations, the OSCE and the Council of Europe. The Federal Foreign Office has its own (small) human rights unit, and various other units there also deal with human rights. In addition, the Federal Government Commissioner for Human Rights and Humanitarian Aid is located in the Federal Foreign Office. However, important foreign policy decisions must also be coordinated with the Federal Chancellery, especially if the Federal Chancellor is very active in (human rights) foreign policy.

The Federal Ministry of Justice (BMJ), which also has a human rights commissioner, and the Federal Ministry for Economic Cooperation and Development (BMZ), which in its own self-image pursues a human rights-based approach, also play an important role in Germany.¹⁰ Other ministries—such as the Federal Ministry of Labour and Social Affairs (BMAS) or the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSJ)—appear sporadically in foreign policy when they are in charge of individual human rights treaties and are involved in the implementation of human rights within the scope of their responsibilities. These include the Ministry of Defence (BMVg), for example, with regard to foreign deployments of the German Armed Forces, or the Federal Ministry of the Interior and Community (BMI) with regard to the fight against international terrorism and with regard to migration and refugee policy.

4.3.2 Instruments of Human Rights Foreign Policy

Within the framework of its bilateral policy, the German government uses various instruments and formats to raise its human rights policy concerns with other countries.¹¹ First of all, there are various forms of human rights dialogues which it conducts with the governments of other countries, either independently or as part of general political dialogues, bilaterally or through the EU. Here, general human rights issues can be addressed, individual cases discussed and, if necessary, cooperation agreements reached.

Such cooperation can serve, for example, to promote the capacity of other states to respect, protect and implement human rights (capacity building). This can be done by strengthening national human rights institutions or, for example, through democratisation assistance, election observation or support for administrative reforms. Sometimes, an attempt is also made to promote stability in the respective countries and to prevent repression by the police and military by “upgrading” the armed and security forces in line with human rights. In addition, there may be crisis prevention measures. Development cooperation, which is often carried out in cooperation with German civil society organisations, ideally serves to promote not only, but above all, economic, social and cultural human rights. At the same time, it can—just like foreign economic policy—provide additional incentives for human rights-compliant behaviour. The withdrawal or “freezing” of cooperation can in turn be used as a means of exerting pressure in terms of human rights policy.

Criticism of human rights in relation to other states takes place either confidentially within the framework of “quiet diplomacy” or publicly through corresponding declarations and protests on the part of the German government or the EU. Likewise, human rights criticism can be presented or supported in multilateral forums such as the UN Human Rights Council and the Third Committee of the UN General Assembly. The aim here is to uphold established human rights standards and to formulate expectations of human rights behaviour that ideally bring about conscious or unconscious adjustments in the behaviour of governments that violate human rights. It can also support the establishment of international commissions of inquiry to investigate allegations of serious human rights violations. At the same time, human rights criticism also expresses solidarity with those affected by human rights violations.

Closely linked to this are efforts to protect human rights defenders (HRDs) at risk. This can be done bilaterally, through German embassies, or within the framework of the EU and its missions abroad. To improve the protection of human rights defenders, the German network Forum Menschenrechte has repeatedly suggested expanding the human resources, financial and technical capacities for human rights work in German embassies at the operational level.¹² The Coalition Agreement of 2021 announced that at appropriate missions abroad, additional human rights posts will be created, but the increase was not very comprehensive, also due to budgetary constraints. The EU Guidelines on Human Rights Defenders also contain practical suggestions on what the EU and its Member States can do together on the ground. These include continuous monitoring and assessment of the human rights situation; elaboration of local strategies for the protection of HRDs; regular contact and exchange with HRDs; visible recognition of their work in the media and the public; if necessary and possible, court and prison visits; emergency measures for persons under acute threat, etc. With the Elisabeth Selbert Initiative, the Ministry of Foreign Affairs launched a special protection programme for human rights defenders in 2020.¹³

Finally, the harshest measures are diplomatic and above all economic sanctions, which the Federal Republic of Germany supports and implements within the framework of the EU or the UN. So far, however, German governments have always refrained from unilateral sanctions. In any case, German foreign policy is strongly committed to multilateralism. Accordingly, within the framework of its human rights policy and the CFSP of the EU, Germany is very much committed to the use and further development of multilateral human rights protection within the framework of regional and global human rights institutions.

But how should we deal with autocrats? How can we work “from the outside” to dismantle state apparatuses of repression and at the same time promote the development of state and non-state capacities for human rights protection in the respective country? There can be no master plan. Depending on the country and situation, intelligent human rights foreign policy uses the appropriate measures from the large toolbox of bilateral and multilateral human rights policy, taking into account the moral, political, economic, geostrategic and military “vulnerability” of the respective regimes. It is also essential to link up with human rights institutions and actors on the ground. However, it must be critically examined in each case whether human rights foreign policy has always explored what is feasible in terms of human rights, especially vis-à-vis those autocracies with which it cooperates. A number of areas of tension arise here.

4.3.3 Areas of Tension

To what extent does human rights foreign policy conflict with other interests? Germany, for instance, is also faced with this question. This will be demonstrated using three policy areas as examples.

(a) Foreign trade policy: As an exporting country, Germany also trades extensively with autocratically ruled countries, above all China, so that conflicts of objectives arise here between human rights foreign policy and foreign trade policy. From the perspective of human rights, it must be ensured that economic (and development policy) cooperation with both “difficult” and other partners does not itself cause human rights problems (do no harm!) but is ideally used to protect and promote human rights. At the same time, the question arises as to how clearly and with what consequences human rights criticism is also formulated vis-à-vis economic partners.

Despite isolated criticism—in the case of China, among other things, of the repression of minorities (Tibet, Xinjiang)—the federal governments have in the past often held back in order not to permanently burden economic relations, especially with heavyweights such as China or India (Kinzelbach 2014; Kinzelbach and Mohan 2016). However, in the new “China Strategy” elaborated by the Federal Foreign Office, China is no longer considered only a partner and competitor, but also a “systemic rival”. The German government views with concern China’s efforts to influence the international order along the lines of the interests of its one-party system and, in doing so, to relativise the foundations of the rule-based order, such as the status of human rights (Auswärtiges Amt 2023, p. 10). In the case of Russia, the federal governments—despite human rights violations and the annexation of Crimea (2014)—held on to the economic cooperation with the “difficult partner” for a long time. This changed abruptly with Russia’s attack on Ukraine (2022), which led to comprehensive economic sanctions by the EU, including Germany that stands firmly by Ukraine.

(b) Arms export policy: There is also a “classic” tension between arms export and human rights policy. From a human rights perspective, the main question is to whom (which) arms are supplied. By their own admission, federal governments of all colours have pursued a “restrictive and responsible” arms export policy in recent decades. However, despite legal restrictions and political commitments, the arms export reports of the federal governments do not give the impression that—at least measured by the scope of licenses and the information on end-users—a restrictive arms export policy giving priority to human rights was pursued. Thus, the interest in regional stability and migration control explains, for example, the extensive arms exports to Algeria during the term of office of the autocrat Abd al-Aziz Bouteflika (1999–2019), which received little media attention. With regard to the highly repressive regime in Saudi Arabia, as a regional hegemon, it was only due to media outrage that tank deliveries were stopped, and only after the scandalous murder of the journalist Jamal Khashoggi (2018) were arms exports from Germany suspended, with the exception, however, of European joint projects. Even the current German government did not revoke export licences to Saudi Arabia for equipment and ammunition as part of a European joint project in 2022.

(c) Migration policy: The increasing externalisation of EU migration policy, which is supported by Germany, combined with a strong focus on reducing irregular migration, must also be repeatedly put to the human rights test. The migration policy interests of the EU and its Member States sometimes conflict with the human rights demands of refugees. This becomes particularly apparent at the EU’s external borders. There, the implementation of the Common European Asylum Policy (CEAS) by the EU Member States sometimes leads to an open breach of international law, including the Geneva Refugee Convention, and EU law. In view of inadequate state and state-impeded (rather than supported) private sea rescue operations as well as push- and pullbacks at the EU’s borders, Germany also has a responsibility to help shape the CEAS in a way that complies with human rights.

Let us be clear: Those who cooperate with autocracies in terms of economic, development or migration policy must not regard human rights merely as an annoying compulsory topic, as sometimes appears to be the case. This is especially true if the cooperation also involves the police, border police and military for the purpose of strengthening regional security (as it was or has been in the case of Germany, for example, with regard to Burkina Faso, Mali, Niger, Nigeria). Especially in states with a poor human rights profile, this is a very risky undertaking.

4.4 References to Foreign Policy Analysis

From a political science perspective, the foreign human rights policy of individual states can be seen as a policy field that is decisively shaped by domestic institutions, processes and actors. In this sense, considerations from policy research can also be applied, although, as mentioned, foreign policy is largely the domain of the executive, and parliamentary legislators are far less in demand than, for example, in domestic and social policy areas. But here, too, there is agenda-setting as well as the formulation, implementation and evaluation of political programmes and measures, which can be described in a modified form in terms of the policy cycle. However, Foreign Policy Analysis is a rather independent field that deals with the domestic determinants of foreign policy decisions.

At the same time, decisions in human rights foreign policy are also significantly influenced by the international environment, which not only provides opportunities for human rights policy action, but also defines the scope for the protection and promotion of human rights in foreign relations. Therefore, studies from the field of International Relations are also fundamentally important for describing and explaining human rights foreign policy. In contrast to Foreign Policy Analyses, these start with states as the relevant actors¹⁴ and examine the behaviour of states towards each other against the background of the structures of the international system. However, the manifold domestic determinants of foreign policy decisions tend to be ignored.

In order to accentuate the differences between Foreign Policy Analysis and the study of International Relations—which have been fiercely debated in the Anglo-American world—three levels of analysis should be mentioned, which actually go back to Kenneth Waltz (1959): “first image” (individual decision-makers), “second image” (domestic processes and actors) and “third image” (structure of the international system). In short, Foreign Policy Analysis focuses primarily on the first and second levels, while International Relations research focuses primarily on the third—as did Kenneth Waltz (1979, 1996), who, as a convinced representative of the neo-realist school, insisted on a strict separation between Foreign Policy Analysis and the study of International Relations. There is no doubt, however, that it makes sense to integrate the different approaches and levels of analysis. At this point, however, we will initially focus only on approaches of Foreign Policy Analysis, on which there is a comprehensive English-language literature.¹⁵ Even though they so far hardly relate to human rights, they will be briefly introduced. Links to International Relations approaches will only be named after the presentation of global human rights policy.

4.4.1 Cognitive and Psychological Approaches

At the level of the persons responsible for foreign policy (first image), Foreign Policy Analysis focuses on the personality traits, psychological dispositions and cognitive processes of the key foreign policy decision-makers. This is where at-a-distance studies come in, which are not based on an intimate knowledge of the respective leaders, as is (ideally) the case with political biographies or insider reports. Rather, it is “profiling” from a distance, by means of which their leadership characteristics and political convictions are to be recorded even without direct access to the persons studied. For this purpose, speech acts are quantitatively collected and analysed on the basis of corresponding coding schemes.

The leadership trait approach, for example, is based on the assumption that the particular leadership style adopted by leaders influences the decision-making process.

The term leadership style means the ways in which leaders relate to those around them – whether constituents, advisers, or other leaders – and how they structure interactions and norms, rules, and principles they use to guide such interactions (Hermann 2003, p. 181).

These leadership styles, which guide how political leaders interact with those they lead or with whom they share power, are based on the answers to three questions: (1) How do leaders respond to political constraints in their environment—do they respect or challenge such constraints?, (2) How open are leaders to incoming information—do they use information selectively or are they open to information that guides their political response? (3) What are the motivations of political leaders? Are they driven internally (by a particular problem, an ideology, a specific set of interests) or by the desire for certain feedback from those around them (e.g. acceptance, approval, support, acclaim)? (Hermann 2003, pp. 181 ff.) A trait analysis is used to provide information that is relevant to assess how political leaders respond to the constraints in their environment, how they process information, and what motivates them to act. Methodically, the leadership characteristics are determined through quantitative studies of (spontaneous) speech acts on the basis of a corresponding text collection and a coding scheme.

The operational code approach is also based on the coded, quantitative collection and analysis of speech acts (speeches, interviews with media). However, it does not focus on leadership styles but on beliefs. Alexander George (1969, 1979) understood operational codes as a set of general beliefs about fundamental issues of history and central questions of politics as these, in turn, guide the action. They serve

as a prism that influences the actor’s perceptions and diagnoses of the flow of political events, his definitions and estimates of particular situations. These beliefs also provide norms, standards, and guidelines that influence the actor’s choice of strategy and tactics, his structuring and weighing of alternative courses of action (George 1969, p. 191, quoted from Brummer and Oppermann 2019, p. 197).

The beliefs recorded in operational codes are, on the one hand, philosophical beliefs about the nature of political life, the feasibility of implementing fundamental political values, the predictability of the political future, control over historical development and the role of “chance” in human affairs. Secondly, instrumental beliefs are examined, which concern the selection and effective pursuit of political action goals and the timing and means in their implementation. Here, too, political beliefs are linked to behavioural expectations, which can serve as a basis for explaining foreign policy decisions taken in the past as well as for predicting future decisions.

Even if one is not a fan of such and other quantitative at-a-distance studies, they highlight the importance of individual leaders for shaping foreign policy, who are not only subject to structural constraints and guidelines, but also shape policy as personalities. The leadership trait and operational code approaches—which have been briefly mentioned here as examples—are ultimately based on the plausible assumption that leadership traits and belief systems of foreign policy leaders have an impact on the decisions and content of foreign policy and thus also influence the foreign policy behaviour of states. For this purpose, such leadership characteristics and beliefs are collected systematically and replicably with great technical effort, detached from subjective judgements. These supplement or reinforce qualitative assessments, which are by no means becoming obsolete. A profound knowledge of foreign policy decision-makers and foreign policy decision-making processes still contributes a great deal (and possibly more) to answering the question as to the extent to which leadership characteristics and political convictions of leaders actually have (had) an impact on individual foreign policy decisions. This presumably also applies to decisions in foreign human rights policy.

Sound knowledge of foreign policy decision-making situations is also important in the mostly qualitative studies that use so-called prospect theory approaches (e.g. Kahneman and Tversky 1979; Levy 1992a, 1992b). These take a closer look at the decision-making context and try to explain decisions under risk, in which the respective decision-makers evaluate the identified options and the expected results as gains or losses compared to a reference point (status quo, certain goals), not least on the basis of subjective perceptions and a corresponding framing. It is assumed that losses and gains are weighted differently (keyword: loss aversion), and the different assessment by the decision-makers affects their propensity to take risks. Corresponding empirical studies attempted to use this approach to explain, among other things, the foreign policy decisions of then US President Jimmy Carter in relation to Iran and of George H.W. Bush in relation to Iraq or, more generally, the policy of the USA and allied states in relation to North Korea.¹⁶ With regard to Germany, the influence of the then Chancellor Gerhard Schröder on the decision to participate in the NATO intervention in Kosovo was examined from the perspective of prospect theory (Brummer 2012).

4.4.2 Domestic Political, Bureaucratic Approaches

Foreign Policy Analyses on the second level (second image) focus on the domestic political processes underlying foreign policy decisions. Here, for example, the extent to which foreign policy decisions are prepared, implemented or even blocked in the respective ministerial bureaucracies can be examined. Organisational routines, regularised work processes, division of labour, coordination as well as hierarchical decisions and control play an important role. Moreover, bureaucracies are not always concerned with identifying the best option for action in the matter at hand. Often it is sufficient (and less costly) to merely find satisfactory options. In doing so, bureaucrats, who are influenced by the respective organisational culture, often orient themselves on earlier decision-making situations. However, internal—or externally triggered—learning processes can occur when the results of earlier decisions fall short of the targeted standard. Experience shows that this is incremental learning, unless the pressure to learn is particularly high due to unusual events (or also a fundamental change at the top in the ministry).

These and other questions are addressed by organisation theory approaches in foreign policy analysis, which see organisational processes and routines as an explanatory variable for the preparation and implementation of foreign policy decisions.¹⁷ While organisation-theoretical approaches focus on the decision-making process within an organisation or a ministry, bureaucracy-theoretical approaches examine the foreign-policy negotiation process between actors in different organisations, i.e. between different ministries and ministerial bureaucracies. Similar to the organisational theory approach, three basic analytical questions arise—but here across ministries: Who are the foreign policy actors involved? What foreign policy positions do they represent? How strong is their influence on the respective foreign policy decision under investigation? (Brummer and Oppermann 2019, p. 147).

With regard to the German government’s foreign human rights policy, there are still no independent studies on organisation or bureaucracy theory. However, there is a lot of practical experience among human rights NGOs, which in their lobbying work depend on knowing the responsibilities and processes within and between the relevant ministries. Accordingly, in Germany, for example, the human rights network Forum Menschenrechte not only meets annually with the Foreign Minister, but also maintains good contacts at the working level with the human rights commissioner and the human rights department in the Foreign Office, with the country and regional departments there, or with foreign missions, which are often involved in the preparation or implementation of human rights policy decisions. Contacts are also maintained with other relevant ministries.

Beyond the government-centred approaches described so far, the view can also be broadened to include other domestic determinants of state foreign human rights policy. For example, the extent to which parliaments, political parties, civil society organisations, diaspora groups or the media influence foreign policy decisions in the field of human rights can also be examined. Here, the aforementioned approaches of policy research can be useful.