Academic journal article Brigham Young University Law Review

External Monitoring of Domestic Religious Liberties

Academic journal article Brigham Young University Law Review

External Monitoring of Domestic Religious Liberties

Article excerpt

Michael Young

I. INTRODUCTION

I have been asked to address some of the possible external pressures that might be exerted on a country to expand the liberties it affords its inhabitants, especially in the area of religious belief and practice. In this context, I intend to examine the nature of the external monitoring mechanisms for human rights generally, and then how those mechanisms are developing in the context of religious liberties. In this context, it is, of course, essential to examine the degree to which, and the mechanisms through which individual countries or groups of countries monitor the behavior of another country and then, if unsatisfied with that behavior, exert pressure on that country to modify its behavior. It is also important, however, to examine external monitoring by non-governmental organizations (NGOs), international organizations (IOs) such as the United Nations, and regional organizations. Finally, to complete the picture, it is important to understand the relationship between the actions of NGOs and IO's and the various nation-states that make up the international system. I will briefly examine each of these issues in turn.1

II. EXTERNAL MONITORING OF HUMAN RIGHTS GENERALLY

Of course, one cannot even begin to discuss this issue without acknowledging that serious questions exist about the legitimacy of monitoring the internal affairs of other countries.2 This monitoring has been debated extensively in the area of human rights.3 It is always important to consider the extent to which one country, a group of countries, or an international organization has the right to look at the internal affairs of another country. Certainly, in the early development of public international laws, which began to take their current form in the 1800's, it was generally considered illegitimate to look at the internal affairs of another country. How a government dealt with its own citizens was considered to be the exclusive concern of that government.4

Over time, two principal challenges arose to the illegitimacy of external monitoring of the treatment a country affords its inhabitants. The first challenge arose in terms of defining what was a matter of internal concern.5 Increasingly, matters that were initially thought to be entirely the province of the local government were considered fair game for criticism by other countries because those matters had some impact or effect on other countries. Actions in the trade arena provide perhaps the simplest example. With the dramatic increase in treaty based promises to provide access to domestic markets, any actions taken that might impede that access became legitimate targets of examination and criticism. Domestic taxes, environmental regulations, investment approval systems, and much more, became appropriate subjects of bilateral and multilateral discussions, criticism, and even sanctions.

The second and much more pointed challenge to the traditional view involves the proliferation of agreements to adhere to uniform international standards in the area of human rights. This process started in the mid-1960s and found its breakthrough expression in the mid-1970s with the Helsinki Accords.fi In the Helsinki Accords, member countries of the Conference of Security Cooperation in Europe (CSCE) agreed to adhere to certain human rights standards.7 The implicit subtext of the Helsinki Accords was that if the signatory countries failed to live up to those standards, that failure was a legitimate matter of multilateral discussion in the context of the CSCE. Thus, one country could legitimately raise and discuss the purely internal behavior of another country in a public international setting8 and that discussion was considered legitimate and appropriate.

Certain countries still strongly resist this marked trend in international law. China, for example, is a strong and vocal opponent of any external discussion of its human rights or civil liberties. …

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