12 point ----Times New Roman---- MLA FORMAT ---use sources att.docx

12 point ----Times New Roman---- MLA FORMAT ---use
sources attached
Assignment Instructions
This assignment is a take-home essay consisting of 3 questions,
2 pages total, to test knowledge and assimilation of the course
objectives. Please exclusively use the course materials to
support each answer. To answer these questions paraphrase, do
not use quotations.
Please answer all three questions below in a paragraph format
by listing the number followed by your answer. I recommend
using the MEAL plan to organize your paragraphs. For more
information, please check out this link. Please cite your sources
using in-text citations; a reference list is not needed. Please
review your work for errors before submitting it and ensure that
it is grammatically correct. Your submission should be no more
than 2 pages in length.
1. Explain what Zewei's article from the week 4 reading was all
about. Be sure to identify the thesis and conclusions.
2. What are the main ideas in Steinberg’s article?
3. Based on the Cragg, Arnold, and Muchlinski article from
week 6, when and why did "business and human rights" become
an international topic? What explains the delay?
Please note that all assignments should be written in Word and
uploaded as attachments within the Assignments section of the
classroom. Use 12 pt. font and double-space. Be sure to put
your name and class information on the document and put your
name on the file. Insert page numbers. Assignments will be
graded using this rubric.

Week 6
MNCs and globalization go hand-in-hand. After reading this
week's lesson, find an MNC and describe ways it has been a
good citizen or a bad citizen. Don't use Nestle since it is
described in the lesson.
Instructions: Your initial post should be at least 350 words.
JHIL
brill.nl/jhil
© Koninklijke Brill NV, Leiden, 2011 DOI:
10.1163/187119006XXXXXXX
Western International Law and China’s Confucianism
in the 19th Century. Collision and Integration
Yang Zewei*
Professor of Law, Wuhan University, Wuhan, China
The Confucian world view in China was based on the concept of
the Celes-
tial Empire of China and embodied in the Tributary System. The
Chinese
view could not fit into the equal international relationship
asserted among
European countries. In the mid-19th century, especially after
the Opium
Wars, international law embarked on a furious collision with
Chinese tra-
ditional Confucianism. Threatened by forces of Western powers,

the Qing
government had no choice but to come to compromise with the
Western
powers. Consequently, the Confucian world order based on the
Celestial
Empire of China collapsed and Chinese officials and scholars
began to learn,
accept and apply international law.
Introduction
Due to its special history and culture, China did not build a
diplomatic
system based on the principle of sovereign equality. The
Confucian world
view based on the concept of the Celestial Empire and the
Tributary System
lasted until the mid-19th century. The Opium War (1839–
1842)1 not only
* Ph. D. E-mail: [email protected]
1) From the late eighteenth century, Britain began to export
opium to China. In 1838 more
than 40000 chests of opium were exported to China. In
consequence, opium flooded China
and the Qing Government fell into a severe financial crisis
because the outflow of silver
caused its soaring price. In the end of 1838, Emperor Daoguang
sent Mr. LIN Zexu as the
imperial missioner to ban opium in Guangzhou. In June, 1840,
the British government,
Journal of the History of International Law 13 (2011) 285–306

286 Yang / Journal of the History of International Law 13
(2011) 285–306
forced China to learn about the modern international relations,
but also
forced a way for international law, a European norm of a new
international
relationship, into China. From then on, international law began
to collide
as well as integrate with Chinese traditional Confucianism.2
Threatened by
the force of Western powers, the Qing government had no
choice but to
come to compromise with Western powers. Consequently, the
Confucian
world order based on the Celestial Empire of China collapsed
and Chinese
officials and scholars began to learn, accept and apply
international law.
Meanwhile, although the Qing Government had been forced to
enter into
the international community and an international legal system,
international
law played little role in China’s foreign relations. Instead the
Unequal Treaty
Regime played an important role.
This article includes four sections. Section I is an introduction
to the
Chinese Confucian world order regime, centered on the
Celestial Empire of
China and the Tributary System. Section II discusses the
collision between
modern international law and Chinese traditional Confucianism
regarding
world order, international relations, foreign trade and treaty

regime. Section
III discusses the integration of modern international law and
Confucianism,
including the introduction of modern international law into
China, the
Unequal Treaty Regime and the Tsungli Yamen (Office of
Foreign Affairs).
Section IV offers a tentative conclusion that the collision
between western
allied with France and the USA, launched the Opium War
against China. However, for the
British government the opium issue merely gave it an excuse to
go to war against China –
without it the conflict would still have occurred. As a result,
China was defeated and was
forced to sign the Treaty of Nanking on 29 August 1842 and the
Treaty of the Bogue on 8
October 1943.
2) Confucianism is a school of political and ethical philosophy,
not a religion, founded
by Confucius (551–479 BC) and his disciples. Since the Han
Dynasty, Confucianism had
become the mainstream of feudalism in China, and
Confucianists developed new theories
to meet the needs of different feudal dynasties. As a result,
Confucianism had been domi-
nating Chinese academy for more than 2000 years and
Confucian classics had been the
guiding rules for feudal authorities. Meanwhile, Confucianism,
as the main body of Chinese
traditional culture, had played an irreplaceable role in
maintaining national integrity and
stability, and provided a huge contribution to preserve and
develop traditional culture. See Li
Zhaojie, Legacy of Modern Chinese History: Its Relevance to

the Chinese Perspective of the
Contemporary International Legal Order, Singapore Journal of
International & Comparative
Law, Vol. 5, 2001, p. 314. J. K. Fairbank (ed.), The Chinese
World Order: Traditional China’s
Foreign Relations, Cambridge 1968, p. 6. Mark Mancall, China
at the Center, 300 Years of
Foreign Policy, London 1984, pp. 22–23.
Yang / Journal of the History of International Law 13 (2011)
285–306 287
modern international law and Confucianism ended with the
latter’s com-
promise. The integration of the two, as a result of coercion from
Western
powers, in practice helped to promote China’s modernization.
I. World Order According to Confucianism
The Confucian world order is based on the view of the Celestial
Empire of
China and the Tributary System.
A. The Celestial Empire of China
In 221 B.C., Emperor Qin Shi Huang built a unified country.
Then, a
regime of the Celestial Empire of China gradually came into
being, which
had been the basic policy on foreign relations in the later 2000
years of
history. According to the regime of the Celestial Empire of
China, Chinese

authority regarded China as a Celestial Empire with ultimate
supremacy
over other countries with China as the only civilized country;
then the world
was entered on Chinese Celestial Empire, with neighboring
countries as
“barbarians” or “dependent countries”, which should pay
tributes to China.
In order to show its grandeur and generosity, China always
granted more
gifts to these tributary states than their tributes.
At least three factors can be identified leading to the
establishment of
the regime of the Celestial Empire of China:
Firstly, a wrong concept about geography.3
Geographically speaking, China is in a relatively independent
and locked
area with seas to its east and south, and deserts and mountains
in its west
and southwest.4 As a result, since ancient times the Chinese
have believed
that China lies in the center of the world, which explains why
China is
always referred to as zhongguo (central state) or zhongtu
(central land). For
example, the work QingChao WenXian TongKao (A
Comprehensive Analysis
of Civil Institutions of the Qing Dynasty), composed in the mid-
Qing Dy-
nasty, pointed out that “China surrounded by seas lies in the
center of the
world; those, living in the border land beside seas, are yi
(people living in

3) See Li Zhaojie, International Law in China: A Legal Aspect
of the Chinese Perspective of
World Order, SJD thesis at the University of Toronto 1996, pp.
9–11.
4) See Wang Tieya, International Law in China: Historical and
Contemporary Perspectives,
Recueil des Cours, 1990, II, p. 215.
(2011) 285–306
the frontiers), and overseas countries are yi too.”5 Here, the
word “yi” con-
notes barbarians or tributaries.
Secondly, imbalance of development between China and
neighboring
states.
China had created a splendid culture superior to neighboring
states and
had long taken the lead in the cultural development in the
world. Therefore,
generally speaking, the neighboring states had long been under
the influence
of Chinese culture. It is not surprising that Chinese authorities
gradually
formed a sense of superiority over “foreign” countries.
According to Gong-
yang Shou, a famous ancient scholar, one of the most important
reasons
Confucius wrote Chun Qiu (Spring and Autumn) was to
emphasize China’s

superiority over foreign states.6 Mencius (372 BC – 289 BC)
also says that
“I only know China makes foreign states change, but never
know China is
changed by foreign states.” 7 Mathew Ricci, an Italian scholar,
pointed out
that “Chinese believe China is the only country in the world that
deserves
praise and commendation. In terms of its grandeur, system and
academic
achievements, they regard foreigners as unreasonable
barbarians. In their
view, no other king, dynasty or civilization deserves
commendations.”8
Since foreign states are on the outer fringes of Chinese
civilization, the only
reason for them to conduct an intercourse with China is to learn
from the
admirable Celestial Empire.
Thirdly, the political needs of the emperors.
In order to maintain the throne, every emperor claimed himself
to be the
emperor chosen by Heaven to own and govern the world, thus
claiming that
“under the whole heaven, there is no land that is not the
Emperor’s, and
within the sea-boundaries of the land, there is none who is not a
subject
of the Emperor”.9 The theory of the divine right of emperors,
integrated
with Confucian cardinal guides and constant virtues which value
priority
5) QingChao WenXian TongKao (A Comprehensive Analysis of

Civil Institutions of the Qing
Dynasty), Vol. 293.
6) Li Xueqing (ed.), Commentary on Gongyang’s Chun Qiu
(Spring and Autumn), Peking
University Press 1999, p. 400.
7) Mencius, Collected Works of Mencius, China Book Press
1988, p. 44.
8) Mathew Ricci and Louis Gallagher, China in the Sixteenth
Century: The Journals of Mathew
Ricci, translated by He Gaoji etc., China Book Press 1983, p.
18.
9) Book of Odes (in Chinese), Chap. II.
285–306 289
in place or rank, verifies the absolute authority of the monarchy
who has
the supreme power and no one else is higher than or equal with
him.
Two factors repose at the center of the view of China’s Celestial
Empire:
de (the virtuous conduct) and li (proper ceremony).
De, as the political ideology of Confucianism, was a basic
guiding prin-
ciple for the emperor to deal with foreign relations. De covers a
wide range
of contents, including religion, ethics and national policy, and
even “every
virtuous conduct in the world”.10 Confucianism lays special
emphasis on
the self-cultivation of virtues, holding that the virtue of an

emperor would
play a crucial role in maintaining the harmony of the world. So,
an emperor
should rule the country by a kingly way, instead of by force of
dictatorship.
It is stated in liji – zhongyong (The Book of Rites – The
Doctrine of The Golden
Mean), one of the Confucian classics, that an emperor should
treat others
kindly in order to win their hearts. How to treat others kindly?
The general
principle was to employ a pacification policy in order to
achieve conciliation
between ethnic groups or states, and at the same time grant
more economic
benefits to them through the Tributary System. Thus, the feudal
emperors,
with supreme virtues, maintained the unification of the world.
Li is another crucial factor in the construction of Confucian
world order.
Guanzhong, an ancient statesman, pointed out that “‘Call the
wavering with
the proper ceremony; cherish the remote with virtuous conduct;
when both
of them are shown invariably, there are none but will be
won.”11 The factors
de and li play together in order to guide the world into a
harmony. “Proper
ceremonies are employed to build a harmonious world.”12 Li
explicates the
structure and order of the relations between China and foreign
countries.
The proper ceremonies, such as conferrence of titles of nobility
and the
tributary system, constructed the emperor – subject relationship

between
China emperors and foreign kings, thus maintaining a
harmonious world.
According to Confucianism, the purpose of a united world, rule
by a
kingly way and rule of virtue is to build a harmonious and
orderly society.
In the case of the relationship between China and small
countries, it means
that a big country should be kind to small countries, instead of
coercing or
10) See Liu Zehua, A History of Politics in the Qin Dynasty,
Nankai University Press 1984, p.
38.
11) Zuozhuan (Zuo Qiuming’s Commentary on Chunqiu), China
Book Press 1980.
12) The Analects of Confucius, China Book Press, 1980.
(2011) 285–306
threatening them, while a small country should be sincere to a
big country,
full of respect and humility. 13 Accordingly, Confucianism’s
influence on the
idea of Celestial Empire is manifested in the fact that each
country has its
own position in the system and each fosters its harmonious
relationship
with others.
Thanks to Confucianism, the concept of Celestial Empire of

China is
enriched with characteristics of anti-violence and anti-war.
Comparatively
speaking, before the mid-19th century, China-dominated East
Asia was
indeed exposed to less violence and wars than afterwards. In the
Ming Dy-
nasty, Emperor Zhu Yuanzhang made an imperial edict which
stated “Those
small remote barbarian states, if only constituting no threat to
China, shall
not be attacked by the Empire.”14 Then Emperor Zhu decided
that more
than 20 states, including Korea and Japan, were “No-attacking
states”, and
instructed his descendants to abide by his decision.
It should be noted that the scope of Confucian world order is
not quite
definite, including the so-called “barbarian” subordinate
neighboring states,
such as Korea, Luichiu, Annam, Burma, and other countries in
Central and
Southeast Asia, sometimes Japan. Besides, the countries of
these areas will-
ing to establish a foreign relationship with China in a
subordinate status,
are also within the scope of the Confucian world order.15
B. The Tributary System
The Confucian world order, based on the Celestial Empire
ideology, pro-
duced a wide range of diplomatic norms and systems, and
consequently
established the unique tributary system in East Asia.16

The Tributary System is a comprehensive and intricate system,
through
which the Empire of China established relationship with
neighboring vassal
states. According to regulations made in the Qing Dynasty, the
Tributary
System mainly includes the following: 1) the Emperor’s
appointment of
13) Mencius, Collected Works of Mencius, China Book Press
1988, p. 13.
14) See The Ming Shi-lu (also known as the Veritable Records
of the Ming Dynasty, Cathay
Bookshop 1983, pp. 485–486.
16) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary
System, Harvard Journal of
Asiatic Studies, Vol.6, No.2, 1941, p. 137.
285–306 291
the ruler of a vassal state, recognition of its tributary status, and
conference
of an official seal on the ruler to send an official
communication; 2) the
ruler’s honorific title in the hierarchy ladder of the Empire of
China; 3) only
Chinese calendar date allowed in all official communications,
including the
memorial to the throne; 4) presenting memorials to the throne

according
to regulations; 5) offering the local products to the throne as a
symbolic
tribute; 6) escort of the tribute mission from the imperial post to
the im-
perial palace; 7) the tribute mission’s obeisance of Chinese
manners when
presenting himself before the emperor, especially the kowtows
(namely,
prostrating himself three times and striking his head on the
ground thrice
at each prostration); 8) grant of gifts to the tribute mission by
the emperor;
and 9) some trade privileges in the capital and across borders.
Besides, the
Tributary System contains regulations on the tribute
commission’s frequency
and scale, its entry and departure, its residence in the capital,
and its con-
duction of trade and so on.17
In fact, the Tributary System is conducive to maintaining the
Chinese
Empire and the tributary states.18 To the Chinese Empire, it is
not only
a way to acknowledge and maintain the world order centered on
China,
but also one safeguard of the Empire of China, because the
surrounding
countries as an “outer fence” kept the Empire from barbarians’
aggressions.
So the Tributary System helped to protect Chinese Empire’s
security and
sovereign integrity. The tributary states even benefited more.
First, thanks
to the title from the Chinese emperor, the ruler of the tributary

state legal-
ized his throne, and improved his authority before his subjects.
Second, the
tributary states were not only protected by China from any
foreign invasion,
but also able to ask for China’s aids in natural disasters. Third,
because of
the Tributary System, the tributary states not only received
much more
valuable gifts from the emperor than the tribute which they
provided to
China, but also were permitted to conduct trade with China.19
Of course,
17) See the Collected Statutes of Great Qing Empire, 1818.
Asiatic Studies, Vol.6, No.2, 1941, pp. 140–141.
(2011) 285–306
the Tributary System promoted cultural ties as well.20 In short,
the Tributary
System played an important role in political, economic and
cultural relations.
In some sense, the Tributary System is a comparatively stable
system,21
within which China’s foreign relations were developing. In
other words,

to the Chinese, any type of foreign intercourse must be adapted
into this
system.22 For example, foreign envoys were treated as tributary
missions,
and the sending of diplomatic envoys of China was also within
the scope
of the Tributary System, regardless of their duty. The most
vivid example
was that in the Ming Dynasty when Zheng He and his fleet went
on seven
expeditions from 1403 to 1433, even reaching the Indian Ocean
and the
east coast of Africa.
In accordance with the Tributary System, China had established
cor-
responding agencies. For example, in the Ming Dynasty the
Ministry of
Rites was in charge of supervising the relations with tributary
states, and
the Ministry of War was in charge of relations with clans and
tribes. In the
Qing Dynasty, Li Fan Yuan (the ministry dealing with vassal
states affairs)
was established to deal with the relations with Mongolians, and
later with
barbarians as well. It is thus clear that the Ministry of Rites and
Li Fan
Yuan are two main agencies in the Tributary System. Besides,
there were
some other agencies involved in the procedural tasks, for
example, Hui-
Tong Guan providing residence for tributary commissions,
Hung-Lu Si
supervising the official rites, and the Ministry of War escorting
tributary

commissions to the border.23
The Tributary System originated during the Zhou Dynasty and
brought
into its completion during the Ming Dynasty and the Qing
Dynasty. Its
long history itself has proved its smooth functioning in China.
It is recorded
in the Collected Statutes of Great Ming Empire that there were
123 vassal
states presenting tributes to the Ming Empire.24 According to
the Collected
20) See Immanuel C. Y. Hsu, The Rise of Modern China, 2nd
ed., New York 1975, p. 184.
Asiatic Studies, Vol.6, No.2, 1941, p. 141.
23) See Chen Tiqiang, China’s Administration of Foreign
Affairs, Chongqing 1943, Chapter 1.
24) See Li Yumin, Study on the Modern Treaty Regime, Hunan
Normal University Press 1995,
p. 3.
285–306 293
Statutes of Great Qing Empire, the states, including Korea,
Luichiu, Annam,
Siam, Sulu, Lao, Burma and Holland, sent tributary
commissions to China

regularly in the Qing Dynasty.25
The success of the Tributary System depended on two reasons.
On one
hand, the System was not based on force, although forces may
be used on
rare occasions (Emperor Yang in the Sui Dynasty and Emperor
Taizong in the
Tang Dynasty went on an expedition against Korea, and
Emperor Chengzu
in the Ming Dynasty occupied Vietnam). The Celestial Empire
of China
disdained to intervene in the internal affairs of neighboring
states, unless a
usurpation of the throne or a coup or other behavior that was
contrary to
customary rules was staged (the same reason as modern
democratic states’
non-recognition of a coup government that overthrew the
previous demo-
cratic government). Truly stated by Zeng Jize: “The relationship
between
China and its dependent states is totally different from that
between the
West and its dependent states.”26 It is not surprising that the
neighboring
states respected China, took all efforts to learn from China, and
were proud
of adaption to Chinese culture.
On the other hand, the System was useful to adjust relations and
co-
ordinate the complicated interests between China, a central
state, and its
neighboring tributary states.27 Although the latter, small and
weak, were

in a subordinate position, they still would accept this type of
relationship
because they received enough political, economical and cultural
benefits.
King Ruanfushi of Vietnam said in his official letter to the
Ministry of Rites
of the Qing Government in 1819: “Small countries are grateful
to China’s
conferrence of their titles and would like to be China’s fence;
China is kind
and generous to other states and sticks to those ancient codes
and records.”28
25) See J. K. Fairbank (ed.), The Chinese World Order:
Traditional China’s Foreign Relations,
Cambridge 1968, p. 11.
26) See Zeng Jize, Zeng Huimin gong (jiegang) yi ji (A
Collection of Zeng Jize’s Works), Yuelu
Books 1983, p. 208.
28) He Xinhua, The View of T’ien Hisn in Ancient China,
Southeast Asian Studies, No. 1,
2006, p. 54.
(2011) 285–306
It should be evident that Confucian world order was a
hierarchy,29 in
which the interdependent relationship between China and its
neighbor-
ing states was asymmetrical. The Celestial Empire of China, in

the core
of the system, was less dependent on these tributary states than
they were
dependent on China. It was because of the asymmetry that
China possessed
a dominating power over the tributary states. However, this
hierarchy was
different from others, given the fact that it was not a
relationship between
the conqueror and the conquered, or a relationship between a
sovereign
state and its colony. Instead, the relationship was built on the
basis of the
superiority of Chinese culture and morality, which was elevated
into cul-
tural imperialism in order to expand Chinese culture instead of
expanding
its territory. In another words, the ideal way to build the
Confucian world
order was to influence the world by means of Chinese virtues.
One core of
Confucianism was to achieve peaceful evolution by means of
culture, way
of living and sense of values.
It has been a political ideal since ancient Qin Dynasty that
culture has been
used to eliminate borders. Chinese Emperor and his empire
relied on much
more assimilating neighboring states than conquering by force.
The acceptance
of China’s assimilation does not mean Chinese troop or Chinese
governor in
the country, it would be enough if only Chinese calendar would
be officially
issued and followed in the country. The principles of morality

and justice be-
tween China and its neighboring states have been persistent
with the spirit in
the Spring and Autumn Period (770 B.C. – 476 B. C.). Although
the System
has developed more and more complicated, it has never changed
in the sense
that the Ministry of Rites (Li Bu) has always been in charge.
Although it is
not developed into the Ministry of Foreign Affairs, it is not
degraded into the
Ministry of Colonial Affairs either.30
29) See J. K. Fairbank (ed.), The Chinese World Order:
Traditional China’s Foreign Relations,
Cambridge 1968, p. 20.
30) See Wang Ermin, Study on the History of Contemporary
Ideology in China, Huashi Press
1987, p. 210.
285–306 295
II. The Collisions between Modern International Law and
Confucianism
In the 17th century, modern international law started its journey
of de-
velopment in Europe. Meanwhile, the Qing Dynasty, in a period
of great
prosperity, still held fast to the tributary system, which was
contrary to the
new equal international relationship in Europe. In the mid-19th
century,

the Opium Wars broke out, and the Qing Empire’s defeat in
consequence
forced China to learn about modern international relations, and
inter-
national law, the new norms for the new international
relations.31 From
then on, the collision between modern international law and
traditional
Confucianism started.
A. World Order
Modern Western world order and China’s Confucian world
order repre-
sent different international relations. The latter is an unequal
relationship,
self-centered and regarding other states as dependent states, but
it takes
non-intervention with dependent states’ affairs, so it is a
conservative and
closed system. The former takes a form of equality,
emphasizing sovereign
equality, but it is an “expanding” system – unequal in its nature,
the law of
the jungle prevailed in the relationship with non-Christian
states.
Therefore, when modern Western world order encounters
China’s Con-
fucian world order, they collide with each other. On one hand,
capitalist
states in the Western world would like to break the unequal
relationship,
instead of accepting the Confucian world order; on the other
hand, the
“expanding” nature of modern Western world order inevitably

links with
aggressive policies that are plotted to break China’s Confucian
world order
and bring it into the world order of Western states. In 1793,
Lord Macart-
ney’s visit, as the British official representative, was the first
action toward
China; however, his requirements were turned down by the
Qing’s Emperor,
Qianlong, because these requirements were “incompatible with
the Qing
Dynasty’s system”.32
Macartney’s visit signaled the incoming collision, but the Qing
Empire,
ignorant of the development of the world, still adhered to the
all-powerful
31) See Yang Zewei, Study on the History of International Law,
2nd ed., Higher Education
Press 2011, p. 336.
32) Zhen Tianting (ed.), Materials about the History of Ming
Dynasty and Qing Dynasty,
Vol.2, Tianjin Renmin Press 1980, p. 376.
(2011) 285–306
Confucian world order and traditional view of China’s Celestial
Empire,
instead of adapting to the changed world. It is then not
surprising that
unprepared China would soon face a tragedy.

B. International Relations
According to traditional Confucianism, the kowtows hold a
position of
very great importance, meaning respect in family and social
relations, and
was the most grand ceremony to the emperor. In the eyes of
Chinese, this
etiquette is necessary for the tributary mission to show respect
and good
faith to the emperor.33 Moreover, the etiquette shows the
supremacy of
the emperor and the superiority of the “Central Empire” of
China, so it is
more than a ritualization, but a real part of China’s world order.
When the
Western missions to China were required to perform the
Kowtows, they
refused on the ground that the Kowtows meant unequal state
relations,
which had become a serious problem to Western states, and a
barrier for
China to develop international relations.34
It is worth mentioning that on the way to Beijing, Macartney
had been
treated as “British tributary mission”, instead of diplomatic
envoy from an
equal state by the official of the Qing Dynasty. Thus, “China’s
relationship
with western countries had long been built on the fictitious
tributary system;
the only way to conduct trade with China was to conduct
tributary trade
based on the Confucian world order”.35

In summary, before the Opium Wars, the relationship between
the Qing
Empire and foreign states was unequal. The relationship with
Western states
was only a trade relationship strictly limited within the tributary
system. It
should be noted that although this shows the Qing Empire’s
self-arrogance,
it was built on the basis that no state’s sovereignty was injured.
In some
sense, the relationship between the Qing Empire and the vassal
states is
more likely a political alliance, a mutually supportive
relationship. This
non-intervention relationship had been exemplified in the Han
Dynasty’s
33) See Gerrit W. Gong, The Standard of “Civilization ” in
International Society, Oxford 1984,
p. 132.
34) See A. B. Morse, The International Relations of the Chinese
Empire, Vol.1, London 1910,
pp. 54–55.
35) Seizaburo Shinobu, Japanese Political History, Vol.1,
translated by zhou Qiqian, Shanghai
Translation Press 1982, p. 89.
285–306 297
policy to Xiongnu,36 an ancient nationality in China, and the
Qing Dynasty’s
policy to its “dependent states”, which were conferred titles by
the Qing

Emperor, but remained completely independent. To the Western
states
conducting trade in China, although the Qing government still
treated
them with a sense of superiority, instead of equality, the Qing
government
never imposed its will on these states.
C. Foreign Trade
Because of its vigilance and precaution against “barbarians”, as
well as fears
that the relationship with foreign states would endanger the
Empire, the
Qing adopted a closed-door policy, which strictly limited trade
with foreign
states. The Canton System limited the ports in which European
traders
could do business in China. It also forbade any direct trading
between Eu-
ropean merchants and Chinese civilians. Instead, the Europeans,
generally
employees of major trading companies, had to trade with an
association
of Chinese merchants known as the Cohong. The European
presence was
restricted to the Thirteen Factories on the harbor of Canton
(Guangzhou).
In 1684, the Emperor Kangxi of the Qing Dynasty allowed
foreigners to
trade with China in four cities, including Guangzhou. In 1759,
Emperor
Qianlong limited westerners to the port of Canton (Guangzhou),
and
no other area, with strict limitations. This was referred to as
“the Canton

System”,37 mainly including the Thirteen Factories and the
guarantee system,
under which foreign traders were only allowed to do business
with these
designated Hong-merchants who guaranteed and supervised
foreign traders,
but forbidden to directly deal with the Qing government. This
manage-
ment system of trading, under which the Hong-merchants
supervised by
the Qing government were supervising foreign traders, reflected
the Qing
Empire’s superiority over westerners, its contempt of
westerners and in
general Confucian view of the world order.
After the Industrial Revolution, in the 1830s–1840s the
capitalist world,
led by Great Britain, was eager to expand. British merchants
and industrial
36) Documents of Han Dynasty, Vol. 94.
37) Michael Greenberg, British Trade and the Opening of China
1800–1842, translated by
Kangcheng, Business Book Press 1961, p. 38.
(2011) 285–306
capitalists insisted that “the Canton System must be
changed”,38 and “the
business system under restriction is unreasonable”,
consequently the British
government must “immediately intervene”, “to liberate trades

with China
from the present shackles of the Canton System”, and place
British-China
trade on “a secure, favorable, decent, and constant basis”.39
That is to say,
even before the Qing Empire’s ban on opium-smoking and the
opium
trading, Britain had fermented military invasion.
D. The Treaty Regime
After the Opium Wars, the 1842 Treaty of Nanjing between
Britain and
China initiated a great number of unequal treaties, which broke
the Con-
fucian world order and produced a new system in international
relations
– the Unequal Treaty Regime. The Unequal Treaty Regime,
contrary to
the normal principles of international intercourse, was an
embodiment of
encroachment on China’s sovereignty by Western powers. These
unequal
treaties, signed under coercion of armed forces, gave Western
powers uni-
lateral privileges in a variety of areas, such as the system of
extraterritoriality,
the trade ports, the leased territories, conventional duty, foreign
customs
commissioners, most-favored-nation treatment, navigation
rights on coastal
and inland waters, religion, education, sphere of influence,
foreign troops
stations, legation quarters, investment in railways, mines and
industry, the
opium trade, labor trade, free recruitment, establishment of

radio stations
and banks, and so on. These privileges, as the main content of
the Unequal
Treaties Regime, amounted in essence to quasi-sovereign power
over China,
exercised by Western countries in order to plunder China.
The Unequal Treaty Regime signified a fundamental change of
rela-
tionship between China and foreign countries. The world order
in which
“China was in a commanding position about international
relations”40
had been broken by Western powers with the Unequal Treaty
Regime and
40) See A. B. Morse, The International Relations of the Chinese
Empire, Vol.1, London 1910,
p. 696.
285–306 299
replaced by a new world order.41 To Western powers, these
treaties “marked
a new era of their policies on China and the bankruptcy of
China’s close-
door policy”.42 Just as A. B. Morse, an American scholar, said,

“Before 1839,
it was China who set up conditions for western states to follow
in order to
keep their relations; but, after 1860, it was western powers that
imposed
conditions of international intercourse over China against its
will.” 43
III. The Integration of Modern International Law and
Confucianism
In the mid-19th century, threatened by forces of Western
powers, the Qing
government had no choice but to come to compromise with
Western powers.
Consequently, the Confucian world order based on the Celestial
Empire of
China collapsed and Chinese officials and scholars began to
learn, accept
and apply modern international law.
A. Introduction of Modern International Law into China
In 1864, William Alexander Parson Martin, an American
missionary, trans-
lated Henry Wheaton’s Elements of International Law into
Chinese, titled
Wanguo Gongfa (Public Law of All Nations), which was the
first book on
international law in Chinese, and the first formal and systematic
introduc-
tion of international law in China.44 His purpose of translating
this book
was to instruct the Chinese to observe the norms recognized by
Western
states, but as a matter of fact he became the first person who

gave a com-
prehensive introduction of international norms generally
practiced among
Western states. It was a progressive step to accept a theory of
international
41) For example, the 1860 treaties of Tianjin and Beijing after
the Second Opium War not
only forced the Qing to agree foreign ministers to stay in
Beijing, and forbade the Qing
government to use the character of “yi” to refer to foreign
states, but also required the Qing
to inform all levels of governments. See Wang Tieya: the
Comprehensive Collection of Old
Treaties, Agreements, Regulations, etc., between China and
Foreign Countries, Vol.1, Sanlian
Book Press 1957, p. 146.
42) Philip Joseph, A Study in Political and Economic Relations
with China, translated by
Hubin, Business Book Press 1959, p. 3.
43) A. B. Morse, The International Relations of the Chinese
Empire, Vol.1, London 1910, p.
337.
Press 2011, p. 338.
(2011) 285–306
relations, which is contrary to the traditional tributary system,
although
China and the West have different purposes.

i) The Qing’s Views on International Law
In general, officials and scholars in the Qing Dynasty could be
divided into
two schools on international law.
One school included members such as Zheng Guanying, Xue
Fucheng,
Zhang Zhidong and Ma Jianzhong, who had no confidence in
international
law, holding that although international law could be helpful to
some extent,
the key still lie in China’s power and prosperity, with which
China could
enjoy benefits, otherwise China could not rely on international
law at all.45
The other school, headed by Duan Fang, Li Hongzhang, Li Jia
and Zeng
Jize, held that international law was perfect and powerful, and
could be
relied on to keep national security and world peace. Li
Hongzhang, who
had long been in charge of foreign affairs, military forces, and
economy,
wrote in the preface to a new edition of Public Law of all
Nations edited by
William Alexander Parson Martin: “Public law is a law for
international
community, if it’s abided by, it can ensure the world peace;
otherwise it will
cause collisions and wars.” He held that Mr. Martin in this book
“is fair
and equitable … that he would like to take the book as a
standard when
dealing with foreign affairs.”

It should be noted that almost all open-minded scholars
recognized the
importance of international law.46 Many of them insisted that
international
law might be used to argue against western powers, but should
not have a
blind faith. Cao Tingjie not only explained Wanguo Gongfa
(Public Law
of All Nations) article by article and sentence by sentence, and
composed
Annotation of Wanguo Gongfa, but also submitted a written
statement to
the emperor suggesting international law be used to prevent
wars and
invasions.47
Press 2011, pp. 346–347.
46) See Tang Caichang, Collected Works of Tang Caichang,
China Book Press 1980, pp. 44- 45.
47) Cong Peiyuan and Zhao Mingqi (eds.), Collected Works of
Cao Tingjie, Vol.2, China
Book Press 1985, pp. 410–411.
285–306 301
ii) The Qing Government’s Application of International Law
Before the Opium Wars, Lin Zexu, a patriotic governor, tried to
apply
international law, especially international law on wars and

aliens, in order
to safeguard national independence and dignity. Lin took
reasonable meas-
ures based on international law to ban opium in China: firstly,
he declared
opium illicit; then he wrote to the British Queen to stop the
opium trade;
and at last, he took action to ban opium in Guangzhou.
William Alexander Parson Martin’s Wanguo Gongfa (Public
Law of All
Nations) was published in 300 copies, which were distributed to
important
coastal ports by the Tsungli Yamen (Office of Foreign Affairs)
to argue
against foreign states. Later on, the Qing government
increasingly applied
international law in foreign affairs, which seemed to help to
some extent.
In the spring of 1864, Rehfues, a Prussian minister, took a naval
vessel
to China. He seized three Danish merchant ships as his prize.
The Qing
Government protested, based on these merchant ships were in
China’s in-
ternal waters under China’s jurisdiction.48 The Qing
government’s protest,
based on the view that international law and the threat to deny
the Prussian
minister, forced Prussia to release the Danish ships and make a
compensa-
tion of 1500 Yuan to the three ships.49
Another example is the China-Peru Treaty Incident. In 1874,
when Peru

sent an envoy to China to sign a commercial treaty, the Qing
Government
asked Peru to improve Chinese labor’s treatment and signed the
China –
Peru Convention to ensure a better treatment of Chinese labor in
Peru.
Besides, China – Peru Commercial Treaty included some
clauses of mutual
most-favored-nation treatment.
During the Sino-Japanese War in 1894, China’s declaration of
war con-
demned Japan’s “invasion of China had broken treaties and
international
law”.50 In 1899 and 1907, China sent representatives to the two
Hague Peace
Conferences,51 and signed the relative conventions and
declarations. The
48) Beginning and End of the Management of Barbarian Affairs,
Tongzhi Period, Vol. 26, p. 30.
49) See Jiang Tingbo, On Introduction of Public International
Law in China, Qinghua
Political Journal, 1932, pp. 61–64.
50) Liangxi (ed.), International Law, Wuhan University Press
2000, p. 36.
51) In 1899, China was represented by Yang Ru, China’s
minister plenipotentiary in St.
Petersburg; in 1907, China was represented by Lu Zhengxiang,
ambassador plenipotentiary
and extraordinary.
(2011) 285–306

above mentioned examples indicate that the Qing Government
had applied
international law to safeguard national interests.
B. The Unequal Treaty Regime
China was brought into the Capitalist world order by the
Unequal Treaty
Regime.52 The Unequal Treaty Regime originated in the 1840
Opium War,
and came into being after the 1860 Opium War; after the 1895
Sino-Japanese
War, it went on a groundbreaking development; the Final
Protocol of 1901
signified its full development.53 The development of the
Unequal Treaty
Regime goes along with the collapse of Confucian world order
and the
invasion of Western powers.
The Unequal Treaty Regime, a child of a specific period of
history, was
in its nature a privilege of “quasi-sovereignty” exercised by
Western powers
over China. As J. K. Fairbank wrote, “unequal treaties made
these privileges
into a regime”.54 According to the treaty law, these treaties had
become
binding on China. That is why, although these treaties were
against the
Celestial Empire’s system, the Qing government had no choice
but to regard
the treaties as domestic law. Yi Xin, the head of the newly
formed Tsungli
Yamen, insisted “as long as we signed these treaties, we must

abide by it”.55
In a word, the foreign relations in the Qing Dynasty was
affected by these
unequal treaties imposed by Western powers. Western powers
which brought
modern international law to China, however, only applied it
among West-
ern countries, not with China, or only applied international
norms which
were useful for their acts of aggression and robbing. It was the
sanctity of
unequal treaties that western powers stressed. Just as Prof.
Cheng Tiqiang
pointed out: “Western powers suppressed China first with force,
then with
p. 6.
p. 11.
54) J. K. Fairbank (ed.), Cambridge History of China’s Qing
Dynasty, Vol. 1, China Social
Science Press 1983, p. 238.
55) Beginning and End of the Management of Barbarian Affairs,
Tongzhi Period, Vol. 50, p.
50.
285–306 303
unequal treaties, which governed all relations with China,

leaving no space
for the application of international law at all.” 56
Mr. Xue Fucheng enunciated that in the intercourse with
Western
states China could only act according to treaties, not
international law. In
an open letter, Guo Songtao explained that China had the right
to refuse
Western states’ illegal demands, but China must respect
treaties. So did
Ding Richang,57 a senior official in the Qing Dynasty.
These attitudes of Qing’s diplomats reflected the Qing
government’s
attitudes that the stress on the holiness of these unequal treaties
was the
common interest of China and western powers. Therefore,
unequal treaties
were basic regulations governing China’s relationship with
foreign countries.
C. The Tsungli Yamen
Before the Opium Wars, all affairs with foreign countries,
envoys and officials
were in the charge of the imperial commissioners, generally the
governor
of Guangdong and Guangxi provinces. This caused a lot of
trouble because
there were no specific rules for him to follow. In 1861, the Qing
established
the Tsungli Yamen (Office of Foreign Affairs), which was the
first diplomatic
department for the Qing government and for China as well.

The Tsungli Yamen was established in conformity to the
historical trend
of the times. Western powers such as Britain, France and
America, dis-
liked dealing with the governor of Guangdong province, which
they held
unequal, and preferred direct contact with the central
government. To the
Qing government, the emperor and the central government did
not know
the details from the reports, false or contrary to the facts
sometimes, from
governors or imperial commissioners; meanwhile, the
Emperor’s instruction
might be delayed or ignored by officials. So, foreign ministers
and diplomats
repeatedly asked for intercourse directly with the emperor and
the central
government. The Tsungli Yamen was welcomed by foreign
states, which
British embassy exclaimed that they “had been working for it
for decades”,58
56) Wang Tieya, International Law in China: Historical and
57) See Wang Tieya, An Introduction of International Law,
Peking University Press 1998, p.
397.
58) Yang Gongsu, Foreign History of Qing Dynasty, Peking
(2011) 285–306

and some Western states even said that this was “the best way
for all states
to keep a friendly relationship in China”.59
The Tsungli Yamen made it possible for foreign diplomats to
directly make
contact with the central government. However, there were still
debates over
how to present before the emperor of the Qing. In 1873, when
Emperor
Tongzhi took over the reins of the empire upon coming of age,
foreign
diplomats asked to make a ceremonial call and present their
credentials
to the emperor, with the etiquette of bowing three times to the
Emperor,
which was refused by the Qing. Later on, rules were set up for
etiquette of
receiving foreign envoys, the emperor could sit or stand, and
foreign envoys
should take the etiquette of bowing five times. In 1890 and
1901, disputes
over the etiquette, venue and rite arose again.60 Western states
believed that
whether the emperor of China received foreign envoys and
credentials with
specific etiquette was not simply a protocol, but concerned with
a state’s
sovereignty and dignity according to modern international law.
Similarly,
the feudal dynasties, especially the Qing Empire, regarded this
as the foun-
dation of its foreign relations.
In 1901, the Qing Empire was forced to reconstruct the Tsungli

Yamen
into the Ministry of Foreign Affairs, because it “was overstaffed
but unable
to fulfill its responsibilities”.61 From then on, the Qing’s
diplomacy began
to develop in accordance with international practices, and at the
same time,
the Qing began to set up and train professional diplomats.62
IV. Conclusion
The Confucian view of the Celestial Empire of China and the
Tributary Sys-
tem lasted to the end of the 19th century. It was in the same
period of history
that modern international law was introduced into China and
underwent
ups and downs in China. Therefore, modern international law
inevitably
collided as well as integrated with Chinese traditional
Confucianism. The
59) History Department of Qinghua University (ed.), Addendum
of Beginning and End of
the Management of Barbarian Affairs, Xianfeng Period, Vol. 4,
p. 680.
60) See Yang Gongsu, Foreign History of Qing Dynasty, Peking
61) History Institute of Tianjin Social Science Academy (ed.),
Report on U. S. Special Envoy
Luan Keyi to China, pp. 5–6.
62) See Jiang Tingbo, Materials Collection on Modern Foreign
History in China, Vol. 1, Busi-
ness Book Press 1932, pp. 323–324.

285–306 305
Qing government had been brought into a wider international
community
and international legal system by Western powers, but as a
matter of fact,
modern international law played no concrete role in the Qing’s
foreign rela-
tions. Instead the unequal treaty regime played a main role. At
that time,
international law, norms and regulations were believed to be
only applied
among Western states, those “civilized” or “Christian” states,
not China.
The only law applied to China in its foreign relations was the
Unequal
Treaty Regime.
In conclusion, the collision and integration of Western modern
interna-
tional law and traditional Confucianism in the 19th century are
characterized
by the following traits:
1) The collision ended with China’s compromise and retreat.
To China,
modern international law had been regarded to be alien and
contrary
to its “system”. Even worse, it would break the Confucian view
of the
Celestial Empire and the tributary system. Those who proposed
to
adopt international law were denounced as “sinners against the
Confu-

cian heritage”.63 However, when modern international law was
forced
into China, the Qing government tended to abide by treaties,
and
proposed a diplomatic policy emphasizing modern international
law.
There were a number of high officials in position executing this
policy.
For example, Yi Xin proposed to deal with foreign states with
good
faith, and Zeng Guofan was strongly against immoral
international
relationships and insisted on abiding strictly to treaties.64
2) The integration of modern international law and traditional
Con-
fucianism was happening under the coercion of Western forces.
As
mentioned above, modern international law, norms and
regulations
did not apply to the Qing Empire, and the only law applied to
China
in its foreign relations was the Unequal Treaty Regime. In
around 60
years, China had been forced into five wars: i) the First Opium
War
of 1840–1842; ii) the Second Opium War of 1858–1860; iii) the
Sino-
French War of 1883–1885; iv) the Sino-Japanese War of 1894–
1895;
63) See Jerome Cohen, China’s Attitude Towards International
Law – and Our Own, in
Jerome Cohen, Contemporary Chinese Law, Cambridge 1970, p.
283.
64) See Articles and Letters of Zeng Guofan, Vol. 30, p. 49.

(2011) 285–306
and v) the War of Eight Powers against China of 1900–1901.65
Then,
China was forced to sign humiliating unequal treaties after each
war:
i) the Treaty of Nanjing after the First Opium War of 1840–
1842; ii)
the treaties of Tienisin and Beijing after the Second Opium War
of
1858–1860; iii) the Articles on Annam after the Sino-French
War of
1883–1885; iv) the Treaty of Shimonoseki after the Sino-
Japanese War
of 1894–1895; and v) the Final Protocol after the War of Eight
Powers
a against China of 1900–1901. These unequal treaties
constituted the
framework of the Unequal Treaty Regime in China.
3) The collision and integration of modern international law
and Confu-
cianism as a matter of fact were conducive to China’s
modernization.
If we regard the Opium Wars as historical incidents that broke
the
Qing’s closed-door policy, Wanguo Gongfa (Public Law of All
Nations)
can be regarded as a theory that broke the Qing’s benighted
view of
the Celestial Empire. Dong Xun, a minister of the Tsungli
Yamen,

in the Preface to Wanguo Gongfa, acknowledged that
“Nowadays,
there are many nations outside China. If there is no law to
regulate
them, how are nations possible?”66 Zhang Sigui also said, the
key to
the richness and powerfulness of Britain, France, Russia and
America
was that “devotion to production, agriculture, commerce and
industry
makes a country rich, and improvement of weapons and troops
makes
a country powerful”.67 This eventually led to the Self-
Strengthening
Movement (1861–1895), an institutional reform during the late
Qing
Dynasty, initiated by some ruling elites to adopt Western
technol-
ogy, which in turn contributed to speed up the pace of China’s
modernization.
66) Dong Xun’s Preface (in Chinese), in W. A. P. Martin,
Public Law of All Nations, Vol.1,
Beijing 1864, p. 1.
67) Zhang Sigui’s Preface (in Chinese), in W. A. P. Martin,
Public Law of All Nations, Vol.1,
Beijing 1864, p. 4.
Copyright of Journal of the History of International Law is the
property of Martinus Nijhoff and its content may

not be copied or emailed to multiple sites or posted to a listserv
without the copyright holder's express written
permission. However, users may print, download, or email
articles for individual use.
24
Gerald M. Steinberg
The Politics of NGOs, Human Rights
and the Arab-Israel Conflict
ABSTR ACT
Terms such as “non-governmental organization” or “global civil
society” are
used to describe tens of thousands of groups, varying greatly in
structure,
objective, funding, impact, and other key aspects. The main
influence of
these organizations results from the application of “soft power”
as “the
ability to get what you want through attraction rather than
coercion or
payments”. NGOs are particularly influential on issues related
to human
rights and humanitarian aid. Their soft-power is based on the
perception of
technical expertise, combined with morality and normative
goals, untainted
by partisan politics or economic objectives, and projected
through the

media and other channels. Powerful NGOs, such as Human
Rights Watch,
Amnesty International, and the International Federation of
Human Rights,
work cooperatively in transnational advocacy networks, using
the language
and frameworks of human rights and humanitarian assistance,
These orga-
nizations spread their views and campaigns via frameworks such
as the UN
Human Rights Council, in alliance with diplomats and political
leaders
from selected governments with similar objectives. Israeli
policy has been
a central focus of this NGO soft-power influence from the 2001
Durban
NGO Forum through the UN Goldstone Commission on the
Gaza war.
The central role of NGO influence is reflected in the Goldstone
Commis-
sion’s mandate, procedures, and reports, and the campaign to
implement its
recommendations. The article examines the influence of NGO
activity in
the political conflict, and on Israeli foreign and security policy
in particular.
NGOs (non-governmental organizations) or CSOs (civil
society organizations) have become important actors in the “soft
power”
The Politics of NGOs, Human Rights and the Arab-Israel
Conflict • 25

arena of international diplomacy. In the United Nations system,
over
four thousand NGOs are accredited to the Economic and Social
Council
(ECOSOC),1 giving them privileged access to many UN
activities, includ-
ing meetings of the Human Rights Council (HRC),2 the 2001
World Con-
ference on Racism3 (also known as the Durban Conference),
and special
frameworks such as the UN Committee on Inalienable Rights of
Palestinian
People,4 the Committee on the Elimination of Racial
Discrimination,5 and
the Committee Against Torture. NGO officials speak in the
sessions, meet
with participating diplomats, and submit documents that are
quoted in
final reports.6 Diplomats, journalists, academics, and other
decision-makers
and opinion leaders routinely accept NGO claims, in most cases
without
independent verification.
NGOs, both individually and through wider “transnational
advocacy
networks” or a “global civil society” framework, are influential
in many
fields, from environmental issues to human rights and
humanitarian aid.
Their moral claims are a major source of this influence, as
reflected in Chan-
dler’s reference to NGOs as “oriented around universal beliefs
and motiva-
tions”.7 Similarly, Keck and Sikkink argue that while
“governments are the

primary guarantors of rights, they are also their primary
violators”, leaving
individuals or minorities with “no recourse within domestic
political or
judicial arenas”. On this basis, they analyze the ways in which
domestic
NGOs “. . . bypass their state and directly search out
international allies to
bring pressure on their states from the outside.”8
In the areas of human rights and international aid, Amnesty
Interna-
tional (AI) was founded to campaign on behalf of “prisoners of
conscience”
and the abolition of torture, mainly in Eastern Europe and
Africa.9 Human
Rights Watch (HRW)10 grew out of “Helsinki Watch”, founded
in the
1970s as a research-oriented alternative to AI. With the support
of the
United States and other Western governments, these NGOs
gained entry
into and influence in the UN and other political institutions. As
their
budgets grew, human rights NGOs became powerful
international actors.
With the end of the Cold War, these NGOs defined new
objectives,
claiming to be experts in asymmetric warfare and advanced
military tech-
nology, as well as the arbiters of international law, human
rights,11 military
necessity, and proportionality. This transformation, and the
political foun-
dations of international legal institutions ( particularly the UN)

and their
sources of legitimacy, in contrast to domestic judicial
institutions, allowed
NGOs to increase their influence in the media and in the
diplomatic
sphere.12
26 • isr a el st udie s, volu me 16 nu mber 2
Thus, NGOs constitute an unregulated and nebulous sector
described
as “fuzzy at the edges”,13 but at the same time, they are highly
influential.
Journalists, UN officials, and academics repeat the technical
claims and
military analyses presented by NGOs such as HRW and AI
without ques-
tion. Revelations regarding the activities of HRW’s former
senior military
analyst, Marc Garlasco, the lack of detailed public information
regarding
his actual expertise, and the contradictions in the technical and
military
claims featured in his reports, illustrate the problematic
credibility.14
These limitations are often masked by the NGO “halo effect”,
through
which groups perceived to promote “good” principles are
protected from
scrutiny by the image of objectivity and morality. This “halo
effect” com-
pensates not only for the lack of accountability but also for the
lack of

expertise in the military and diplomatic spheres in which many
NGOs are
active. According to Willets, “There is a widespread attitude
that NGOs
consist of altruistic people campaigning in the general public
interest, while
governments consist of self-serving politicians. . . . such an
attitude should
not be adopted as an unchallenged assumption . . .”15 Habibi
demonstrates
that NGOs that deal with human rights elicit “instinctive
support amongst
the general public”,16 and Heins shows that NGOs create
“symbolical
victims” and then portray themselves as altruistic rescuers.17
This process is enhanced by the dominance of post-colonial
ideology
among NGO officials who give preference to “victims” of
Western impe-
rialism and capitalism while criticizing liberal democratic
societies. The
ideological tilt among NGOs is reflected in their publications
and analyses,
particularly with respect to the application of international law
and human
rights claims. Kenneth Anderson noted that groups such as
HRW, “focus to
near exclusion on what the attackers do, especially in
asymmetrical conflicts
where the attackers are Western armies” and tend “to present to
the public
and press what are essentially lawyers’ briefs that shape the
facts and law
toward conclusions that [they] favor . . . without really
presenting the full

range of factual and legal objections to [their] position.”18
These critical perspectives will be shown below to be valid for a
number
of powerful international NGOs including HRW, AI, FIDH
(France),
Christian Aid (UK), and the Geneva-based International
Commission of
Jurists (ICJ). These and many other organizations lack the
transparency,
accountability, and checks and balances designed to mitigate
and redress
abuse. In parallel they have been shielded by the “halo effect”,
which
enhances credibility and the image of altruism.
Conflict • 27
NGOs A ND SOFT POW ER
Notwithstanding these limitations, and in some ways as a result
of them,
NGOs exert a great deal of political power, particularly
regarding moral and
legal issues. As Blitt notes, NGOs “identify their primary goals
as monitor-
ing and reporting of government behavior on human rights . . .
building
pressure and creating international machinery to end the
violations and to
hold governments accountable.”19
This influence is based on the application of soft power, “the

ability
to get what you want through attraction rather than coercion or
pay-
ments”.20 Nye’s analysis includes the realization that “NGOs
and network
organizations have soft power resources and do not hesitate to
use them.”21
Among those resources, the perception of expertise, and
commitments to
a universal morality untainted by partisan politics or economic
objectives,
are crucial for these human rights NGOs.
The Internet and advanced information technologies have
greatly
enhanced NGO soft power. NGO networks with hundreds, and
in some
cases, thousands of member organizations, “are able to focus
the attention
of the media and government on their issues”.22 The extensive
resources
available to global NGOs permit them to engage in lobbying
campaigns
and to mobilize mass demonstrations and media visibility that
have major
impacts on governments and policies.23
For Europe, soft-power is not a residual or secondary element,
but
rather is often the primary vehicle to exert international
influence, and the
NGO framework is a central vehicle for exercising this power.
The term
NGO notwithstanding, European governments and the European
Union
(EU) provide hundreds of millions of euro annually to non-

governmental
organizations in order to promote specific policy goals.24
Such funding is central to European policy in the Southern
Mediter-
ranean and with respect to Israeli-Arab peace efforts,25 and has
greatly
enhanced NGO budgets, power, and influence. Among the key
frame-
works that provide funds to NGOs for political activities is the
European
Instrument for Democracy and Human Rights (EIDHR), with an
annual
budget of €160m, under the auspices of the Europe Aid
Cooperation
Office. In the Arab-Israeli zone, however, many such NGO
projects, as
demonstrated below, focus primarily on the conflict, and
promote the
Palestinian narrative.26
As a result, and in contrast to universality and the “fair
application
of human rights principles”, political NGOs focus on a smaller
group
of targets, where funding is available and their influence is
amplified.
Israel has become the primary target of these powerful political
and ideo-
logical NGOs, in parallel to the agenda of the Organization of
the Islamic

Conference (OIC), which dominate the UN human rights
frameworks.
NGOS A ND THE UN IN THE A R AB–ISR A ELI CONFLICT
Following the end of the Cold War, powerful NGOs such as
HRW and
AI sought new issues and means of maintaining and increasing
their influ-
ence. Kaldor refers to the emergence of a “global civil society”
resulting
from “a growing consciousness of a set of duties towards
mankind, which
developed as a consequence of the wars of the 20th century.”
The increased
role of NGOs in conflict regions was justified by moral
concepts such as
the “duty to interfere (Devoir d’Ingerence)” in the context of
humanitarian
disasters.27
In parallel, the Islamic bloc28 expanded its influence in UN
human
rights mechanisms. In his detailed analysis, “Human Rights and
Politicized
Human Rights: A Utilitarian Critique”, Habibi cites the
“hundreds of
one-sided resolutions” that have emerged from the UN General
Assembly,
Security Council, Economic and Social Council Commission
(ECOSOC),
Human Rights Commission (HRC), and Commission on the
Status of
Women as evidence that “At the UN, Israel is singled out for
more intense
scrutiny and held to higher standards than any other country.”29

The network of human rights NGOs has played a critical role in
contributing to and reinforcing this intense focus on Israel in
the UN
human rights structures. Following the collapse of the Oslo
negotiations
and during the period of violence between 2000 and 2004,
referred to as
the “second intifada”, NGOs with ECOSOC status frequently
supported
the Islamic governmental delegations that dominated the Human
Rights
Commission.30 The NGO statements, testimonies, and “expert
reports”
highlighted allegations against Israel and repeatedly called for
“independent
investigations”. Major international NGOs, including HRW, AI,
the ICJ,
and FIDH (France) submitted numerous reports and statements
to the UN
Human Rights Commission (UNHRC) during this period.
These publications often cited reports by Palestinian NGOs,
such
as the Palestinian Center for Human Rights (PCHR), Al Haq,
and Al
Mezan, which, in turn, relied on claims made by Palestinian
witnesses,
which could not be verified. They also tended to ignore or
downplay Israeli
human rights perspectives, including the killing of over 1000
civilians in
terror attacks, and the wider context of the conflict.31 As Heins
notes, in

Conflict • 29
such NGO reports, it is “not the event, but the event’s telling
that counts”,
and “The process of establishing the facts of victimhood plays
itself out
through language (including pictures), which implies that it is
inherently
contestable.”32
The high-profile 2001 UN Conference on Racism, held in
Durban,
consisted of three frameworks of which the NGO Forum was the
most
influential. This Forum included thousands of representatives
from an esti-
mated 1,500 organizations, whose participation was enabled by
extensive
funding provided by the Ford Foundation,33 the UN, as well as
govern-
ment programs in Canada and Western Europe. In addition to
having
their costs paid, the high level of NGO participation in the
Durban
Conference is also explained by the impact provided by UN
recognition,
legitimacy, and on this basis, increased prospects for additional
funding.
Heins notes the ease with which the Durban mechanism enabled
indi-
viduals to “mutate into NGOs, even for a few days by just
filling out and
submitting forms that are available as PDF downloads.”34 The
Durban

Forum, as well as the strategy that followed, is an important
example of
a powerful NGO-based transnational advocacy network
operating in the
soft-power dimension. The Ford Foundation played an important
coor-
dinating role for NGO advocacy network, particularly in
assisting Pales-
tinian groups,35 while powerful global actors such as HRW and
AI were
central in forming the agenda. In addition, the South African
National
NGO Coalition played a central role, working with Palestinian
NGOs,
including MIFTAH, the Palestinian Committee for the
Protection of
Human Rights and the Environment, BADIL, Al Haq, and the
Palestinian
NGO Network (PNGO).
The draft texts were composed during a series of regional and
prepa-
ratory conferences, including one in Tehran during February
2001, from
which Israelis and Jewish delegates were excluded by the
Iranian govern-
ment.36 The resolutions included references to “holocausts and
the ethnic
cleansing of the Arab population in historic Palestine” and of
the “racist
practices of Zionism and anti-Semitism”.37 In Durban, the NGO
Forum
was also physically intimidating for Jewish and Israeli
participants. David
Matas and others report a “steady stream of incidents” directed
at the

members of the Jewish caucus. “On entry to the forum grounds,
every
participant was accosted by virulent, anti-Semitic slogans,
pamphlets, slurs
and chants”, including “kill all the Jews”.38 Copies of core
anti-Semitic
literature, such as the “Protocols of the Elders of Zion” and
cartoons of
“hooked nose” Jews with “pots of money surrounding their
victims” were
distributed by the Arab Lawyers Union and similar groups.39
In this atmosphere, and with the active participation of
“mainstream”
NGOs such as HRW and AI, the NGO Forum adopted a final
declara-
tion that featured attacks on Israel. (Similar language was
removed from
the text of the governmental forum of the Durban Conference,
following
a walkout by American and Israeli delegations, and intense
negotiation
among the remaining delegates.)40 Article 164 asserted that,
“Targeted
victims of Israel’s brand of apartheid and ethnic cleansing
methods have
been in particular children, women and refugees.” Article 425
advocated “a
policy of complete and total isolation of Israel as an apartheid
state . . . the
imposition of mandatory and comprehensive sanctions and
embargoes, the

full cessation of all links (diplomatic, economic, social, aid,
military coop-
eration, and training) between all states and Israel.” In this
spirit, Article
426 condemned states that “. . . are supporting, aiding and
abetting the
Israeli apartheid state and its perpetration of racist crimes
against humanity
including ethnic cleansing, acts of genocide.”41
Korey refers to the Ford Foundation’s role in the Durban
conference
as a “stumble”, noting that “not every initiative of the
foundation has gone
well . . . Durban turned out to be a propagator of vulgar anti-
Semitism.”
Previous “world conferences on racism” had focused on South
African
apartheid. In the case of Durban the Arab and Islamic regimes,
with the
assistance of the NGO networks, turned their attention and
resources to
attacking Zionism.42 The combined NGO/UNHRC “Durban
strategy”,
was implemented in March 2002 following a series of mass
Palestinian
terror attacks followed by the IDF operation Defensive Shield.
Palestinian officials claimed that the IDF had committed a
“massacre”
in the Jenin refugee camp.43 NGO officials quickly repeated
these claims.
On 16 April Le Monde cited reports by HRW concluding that
Israel had
committed “war crimes”44 and demanded the appointment of an
“inde-

pendent investigative committee”. Shortly afterwards, an AI
statement
declared, “The evidence compiled indicates that serious
breaches of interna-
tional human rights and humanitarian law were committed,
including war
crimes”, and demanded an immediate inquiry.45 Other
influential NGOs
issued similar statements, reports, and condemnations, including
Caritas
(a Catholic group),46 as well as Palestinian NGOs funded by
European
governments, such as MIFTAH.
HRW was particularly active in this campaign,47 issuing 15
press
releases and reports condemning Israel in 2002.48 In May its 50
page
report, “Jenin: IDF Military Operations”, was based largely on
unverifiable
“eyewitness testimony” from Palestinians.49 One sentence
mentioned the
justification for the operation, noting that “The Israelis’
expressed aim was
Conflict • 31
to capture or kill Palestinian militants responsible for suicide
bombings
and other attacks that have killed more than seventy Israeli and
other civil-
ians since March 2002.”50 In contrast, HRW’s detailed
indictment against

Israel included allegations that “IDF military attacks were
indiscriminate
. . . failing to make a distinction between combatants and
civilians . . .
the destruction extended well beyond any conceivable purpose
of gaining
access to fighters, and was vastly disproportionate to the
military objectives
pursued.” It alleged that the IDF had used Palestinian civilians
as human
shields “to screen Israeli soldiers from return fire”. It also
referred to the
death of Munthir al-Haj, acknowledged as an “armed Palestinian
militant”,
as a case of “murder” and “willful killing”.51 (Such claims,
categorizations,
and legal analysis by human rights NGOs in the context of
armed conflict
have been shown to be inconsistent and highly problematic.)52
Following HRW’s lead and other NGOs, the UN Report
similarly
exculpated the Palestinian side from all responsibility. It stated
that, “Israeli
military retaliation for terrorist attacks was often carried out
against Pal-
estinian Authority security forces and installations. This had the
effect of
severely weakening the Authority’s capacity to take effective
action against
militant groups that launched attacks on Israelis.”53 (The UN
report also
differed from HRW and other NGOs on some significant points,
such
as noting that, “Armed Palestinian groups sought by the IDF
placed

their combatants and installations among civilians. Palestinian
groups”,
and their tactics, “targeted at IDF personnel but also putting
civilians in
danger.”54)
After Jenin, the NGO networks supported and often led UN con-
demnations of Israel that reflected the Durban strategy,
particularly in the
human rights frameworks. In parallel, HRW also supported the
sanctions
and boycotts of the Durban NGO declaration. In a CNN
interview, HRW
executive director Kenneth Roth called for “conditioning” or
cutting US
aid funds to Israel.55 In October 2004, HRW published “Razing
Rafah”,
based on unverifiable Palestinian allegations and
unsubstantiated security
judgments. This also provided the foundation for the
participation of HRW
officials (specifically head of the Middle East and North Africa
division,
Sarah Leah Whitson) in anti-Israel boycott campaigns.
In parallel, NGO soft power was a significant factor in sessions
of
the UNCHR—both the biannual and emergency sessions. The
58th Ses-
sion in 2002 included the participation of approximately 300
NGOs,
many reflecting pro-Palestinian positions, including PCHR,56
Al Haq, and
others.57 On 2 April 2002, during the IDF Operation Defensive
Shield in
Jenin, Al-Haq charged that, “The Israeli government has

launched a new
campaign of aggression against the Palestinian people that
threatens the
lives of the whole of the civilian Palestinian population.”58 It
also repeated
the demands of PLO head Yassir Arafat for international
intervention,
through “. . . immediate steps to ensure protection for the
civilian Palestin-
ian population, and . . . an immediate end to the illegal Israeli
occupation
of the Palestinian Territories. . . .”59
Much of the language included in NGO statements is often
reflected
in the UNCHR resolutions and reports. Israel was condemned
for “. . .
gross, widespread and flagrant violations of human rights in the
occupied
Palestinian territory, in particular regarding the violation of the
right to
life, . . . the disproportionate and indiscriminate use of Israeli
military force
against the people of Palestine and its leadership”, and
numerous other
allegations.60 This text closely followed the submissions from
AI, PCHR,
Al Haq, and other NGOs. As in the case of the NGO statements,
the
UN report included only minor references to the numerous
terror attacks

against Israelis.
In 2006, in response to the widely perceived bias of the existing
system,
the Human Rights Council was created to replace the Human
Rights
Commission.61 However, this institutional reshuffling had little
impact
on the role of the NGO community, and the First Special
Council Ses-
sion in July 2006 followed the earlier pattern. Statements by
officials from
AI, HRW, World Vision International, the ICJ, and others again
made
accusations holding Israel responsible for “deliberate and
disproportionate
attacks” against the Palestinians amounting to “war crimes”,
and “collective
punishment”62 in Gaza.
The UN Committee on the Exercise of the Inalienable Rights of
the
Palestinian People provides another venue for NGO
involvement in this
agenda. It holds numerous public conferences and “civil
society” seminars
in which NGO officials play a central role. NGO statements
often reflect
soft power and the Durban strategy, including allegations of
“apartheid”,63
“ethnic cleansing”,64 and calls to impose “sanctions, boycotts
and divest-
ments”.65 Former Australian Foreign Minister Alexander
Downer noted
“concern at the high level of UN secretariat resources devoted
to anti-Israeli

activity”, explicitly citing the UNCEIRPP.66 According to a
report by the
Anti-Defamation League (ADL), the committee is “the single
most prolific
source of material bearing the official imprimatur of the UN
which maligns
and debases the Jewish State”, and noted that this committee is
“the only
committee in the UN devoted to a specific people”.67 These
NGO confer-
ences take place in venues designed to provide public and media
expo-
sure, such as Vienna, Geneva, Beijing, Jakarta, and the EU
Parliament in
Conflict • 33
Brussels. In the past decade 148 NGOs registered with the
CEIRRPP that
have issued statements or participated in these sessions.68
NGOs that focus on human rights are also central in the
activities of
the UN Committee on the Elimination of Racial Discrimination,
whose
formal mission is to monitor implementation of the
International Covenant
on the Elimination of All Forms of Racial Discrimination. A
February 2007
session featured documents and updates by six NGOs whose
submissions
were placed on the Committee’s website and also formed a
major part of the

final report.69 A joint submission from Palestinian NGOs Al
Haq, BADIL,
and Al Mezan, as well as some Israel-based NGOs with similar
agendas
(ICAHD and Mossawa), characterized Palestinians as
“indigenous” while
branding Jews as “colonizers” and claimed that Israel engaged
in “forced
expulsions” of the indigenous population. This submission also
included a
comparison of the State of Israel to Nazi Germany.70
Israel’s separation or security barrier, which was constructed in
response
to large scale terror attacks, was also a central focus of UN and
NGO coop-
eration. In 2004, NGOs published a number of press releases,
letters, and
reports calling on the UN to take action, and demanding that the
US and
the EU penalize Israel.71 NGOs active in this campaign
included HRW,
AI, Christian Aid, World Vision,72 the Palestinian
Environmental NGO
Network (PENGON), the Palestinian Grassroots Anti-Apartheid
Wall
Campaign, Palestinian affiliates of the ICJ, the UK-based War
on Want,
the Mennonite Central Committee, and Medicine du Monde
(France).
Christian Aid lobbied the British government, including a press
release
entitled “Why the Israeli ‘barrier’ is wrong”, which referred to
Palestinian
hardships inflicted by Israel’s “land grab”.73

NGO activity supported the diplomatic campaign led by the OIC
that resulted in a UNGA resolution, referring the issue to the
ICJ for an
“advisory opinion”. The ICJ issued its advisory opinion in July
2004. As
anticipated, the majority claimed that the Israeli “separation
barrier” was
a violation of international law, although a dissenting opinion
by Judge
Buergenthal pointed out the inconsistencies and errors in the
majority
view.74
The UNHRC-NGO activities targeting Israel were also
prominent
during the second Lebanon War (12 July–14 August 2006),
which coincided
with the Second Session of the UNHRC. Statements were
submitted by
Badil, AI, ANND (Arab NGO Network for Development), HIC
(Habitat
International Coalition), and others. Most NGO statements
ignored the
context of the conflict, including the Hezbollah attacks that led
to the
Israeli response.
This cartoon won the BADIL (Palestinian NGO Resource Center
for Palestinian
Residency and Refugee Rights) 2009–10 “Al Awda Award.” The
NGO receives

funding from a number of European governments.
Conflict • 35
NGO officials, in support of the Arab and Islamic delegations
(Egypt,
Saudi Arabia, Indonesia, Qatar, Bahrain, Pakistan, and others)
again pressed
the UNHRC to establish a commission of inquiry, with a
mandate focusing
only on allegations against Israel. The Commission claimed that
investigat-
ing Hezbollah “would exceed the Commission’s interpretive
function and
would be to usurp the Council’s powers”.75 The report repeated
the language
of the NGOs in their written statements, including accusations
of “collec-
tive punishment” and “excessive, indiscriminate and
disproportionate use
of force by the IDF”.76
In 2008, planning began for the “Durban Review Conference”
(DRC)
scheduled for April 2009. Chaired by Libya and Iran, with the
support of
the OIC, the expectation was that this would repeat and expand
on the
2001 conference. The NGO network sought to play a central
role in these
activities, including promotion of an NGO Forum modeled on
the Durban
experience.77 However, in January 2008, the Canadian

government (led by
the Conservatives, which were in opposition during the 2001
conference)
declared that it would not participate in Durban II. In
November, Israel
announced a similar decision, followed in early 2009 by the US,
Italy, Hol-
land, and others. In response, a number of NGOs expressed
sharp opposi-
tion to these decisions not to participate. HRW condemned the
delegations
for “undermining the conference”, arguing that there was “no
justification
for the decision”78 and pressed for “engagement”.79 Al-Haq
accused Israel
of creating an “apartheid regime in the Occupied Palestinian
Territories”.80
The intense debate concerning the role of NGOs in this process
and
the intense criticism of the 2001 experience led to a decision
against hold-
ing an NGO Forum in the 2009 Review Conference. On this
issue, the
delegates and UN officials agreed not to provide official
support for this
activity, and major NGO funders, including the Ford Foundation
and the
Canadian government adopted similar policies. As a result, the
NGO role
and influence in the review Conference was relatively minor
and restricted
largely to off-site gatherings that were sparsely attended.81
THE NGO ROLE IN BDS A ND “L AW FA R E”

In the decade since the 2001 Durban NGO Forum, NGOs have
adopted
a number of different tactics for implementing the call for “a
policy of
complete and total isolation of Israel as an apartheid state”.82
The goal
of imposing “mandatory and comprehensive sanctions and
embargoes,
the full cessation of all links (diplomatic, economic, social, aid,
military
cooperation, and training) between all states and Israel”83 has
become the
basis for a campaign of boycotts, divestment, and sanctions
(BDS) mod-
eled on the South African experience. Allegations regarding
human rights
and international law violations are used as a prime tool of the
Durban
strategy.
There are numerous examples in which NGOs have featured
promi-
nently in BDS campaigns. These include academic boycott
efforts, par-
ticularly in the UK, and North American and European church-
based
anti-Israel divestment resolutions, and other forms of sanctions
efforts,
including calls for arms embargoes.84 For example, in the UK
academic
boycott movement, which initially began within the framework

of the
Association of University Teachers (AUT),85 the language of
the boycott
resolutions was taken from PNGO. The AUT boycott effort was
initiated
in 2002, as part of the Jenin campaign to demonize Israel, and
was revived
in the context of the separation barrier campaigns and the ICJ
advisory
decision. PNGO co-sponsored a conference in December 2004
in London
to focus on this issue.86 Powerful groups such as War on Want
continue to
promote academic boycott efforts in the UK and elsewhere.
In parallel, the NGO network also promoted anti-Israel
divestment
resolutions and debates among Lutheran, Anglican, and other
Protestant
church groups. This campaign involves many Palestinian NGOs,
such as
MIFTAH, BADIL, Al-Mezan (based in Gaza), Association for
the Defence
of the Rights of the Internally Displaced (ADRID), Ittijah, and
others. In
addition, the public relations effort behind divestment has
gained visibility
through the activities of Christian-based NGOs, such as the
Mennonite
Central Committee (based in North America and a recipient of
significant
Canadian government funding), the Sabeel Ecumenical
Liberation Theol-
ogy Centre (based in Bethlehem), and groups such as Christian
Peacemaker
Teams and Ecumenical Accompaniment Programme in Palestine

and Israel
(EAPPI).
HRW was also active in the BDS campaigns, both as a major
source
of allegations against Israel, and in an activist role. The 2004
publication
of “Razing Rafah” and the accompanying press conference87 at
Jerusalem’s
American Colony Hotel provided the basis for HRW’s
involvement in the
effort to force Caterpillar to end sales to Israel. This activism
included emails
and letters, as well as participation in rallies. (AI and other
NGOs were also
involved in these activities).88 The publicity surrounding the
Caterpillar
boycott campaign added to the soft power war against Israel.
Although
Caterpillar rejected the pressure, the overall impact was to
increase the
visibility of delegitimization based on boycott and sanctions.
Conflict • 37
A leader of BDS activities in Scandinavia has been the
Coalition of
Women for Peace (funded by a number of European
governments and the
New Israel Fund). Their lobbying played an important role in
the decision
by the large Norwegian government employees’ pension fund
and other

groups to sell shares in Israeli firms. The radius of BDS
campaigns is widen-
ing. In 2009, Belgian municipalities boycotted a bank due to its
business
dealings in Israel.89 The 2009 Toronto Film Festival, which
included a
number of films related to the 100th anniversary of the founding
of Tel-
Aviv, was the focus of a well-organized boycott campaign.90 A
prominent
director pulled out of the festival in protest of the focus on Tel-
Aviv, and he
was supported by a number of well-known artists. Similarly, the
organizers
of the 2009 Edinburgh International Film Festival returned a
£300 gift from
the Israeli embassy following protests.91
Events such as “Israel apartheid week” (IAW) on university
campuses
are closely related to the BDS and demonization process, and
NGOs are
actively involved in these frameworks as well. In 2010, NGO
speakers
at IAW events included officials from ICAHD ( Jeff Halper on
“Israeli
Apartheid: The Case for BDS” in Glasgow; and on “Israel and
Palestine
hurtling Towards Apartheid” at UC Santa Cruz), the Alternative
Informa-
tion Center, PCHR, Addameer, and Badil (Nidal al-Azza on
“Refugees
and Israel’s Apartheid Regime” at Al Quds University). Many
campuses
screened NGO videos, such as “Breaking the Silences”, “Israeli
Soldiers talk

about Hebron”, and the “Occupation 101” video, which includes
interviews
with leaders from HRW, Rabbis for Human Rights, ICAHD,
B’Tselem,
and the Gaza Community Mental Health Programme.
NGOs are also prominent in the “lawfare” campaigns used to
further
the delegitimization of Israel. This strategy involves exploiting
the terminol-
ogy of international human rights and humanitarian law by
accusing Israel
of “war crimes”, “crimes against humanity”, and other
violations.92 The
lawfare strategy was included in the NGO Forum of the 2001
Durban Con-
ference which called for the use of legal processes against Israel
including
the establishment of a “war crimes tribunal”.
Taking advantage of universal jurisdiction statutes in a number
of
Western countries, NGO-led lawfare cases in national courts, as
distinct
from international frameworks such as the ICJ and ICC, are
often filed
in venues where there is no connection between the forum and
the parties
and events at issue. Examples include the 2001 suit in Belgium
against
Ariel Sharon for the Sabra and Shatila massacre; suits in the UK
against
Doron Almog (2005) for the 2002 targeted killing of Hamas
leader Salah
Shehade, and against Ehud Barak (2009) and Tzipi Livni (2009)
for the

Gaza war; the 2008 case in Spain against seven Israeli officials
(also on
Shehade); and the 2005 civil suits in the US against Avi Dichter
(citing
Shehade) and against Moshe Ya’alon for a 1996 operation in
Lebanon
against Hezbollah.
Cases have also been filed against those doing business with
Israel
such as the US lawsuit brought by the parents of Rachel Corrie
against
Caterpillar (2005); the 2008 case in Canada against companies
involved in
West Bank construction, and two suits filed (2006, 2009)
against the UK
government to block arms export licenses to companies doing
business
with Israel. While all the lawfare cases referenced here have
been dismissed
in the preliminary stages, the propaganda impact and damage
have been
significant.
NGOs leading anti-Israel lawfare include PCHR (cases in Spain,
the
UK, New Zealand, and the US over the Shehade killing and the
Gaza War),
the New York-based Center for Constitutional Rights (Dichter,
Ya’alon,
Corrie cases), Al-Haq (Barak, Canada cases), Al Mezan (Barak

case), Yesh
Gevul (Shehade cases in the UK) and Adalah (Spain case).
Michael Sfard,
Israeli attorney and legal advisor for Yesh Din, Breaking the
Silence, and
others, is also a prominent actor working with Al Haq and other
NGOs on
the 2008 case in Canada, and potential filings in the UK.
NGOs, THE 2008–9 GA Z A WA R,
A ND THE GOLDSTONE R EPORT
The renewed hostility in Gaza that erupted into full scale
conflict on
27 December 2008 was accompanied by an expansion of the
combined
UN-NGO soft power campaign targeting Israel, in which the full
range
of tactics that had been developed prior to the Durban
Conference were
implemented.93 NGOs including HRW and AI condemned the
Israeli
operation and presented a chronology that downplayed or erased
the con-
text of Hamas attacks that preceded the Israeli incursion. The
NGOs were
also central in the Special Session of the UNHRC held in
January 2009.
Statements from Al-Haq, and the Mouvement contre le Racisme
et
pour l’Amitie entre les Peuples (MRAP), declared Israel guilty
of “war
crimes” and “crimes against humanity”. AI, HRW, and ICJ
accused Israel
of “indiscriminate” and “disproportionate” attacks.94 Libyan-

linked Nord
Sud XXI charged Israel with participating in an “intentional
effort ongoing
for more than 60 years by an illegal occupier and its allies to
destroy the
Palestinian people”,95 with the aim to commit genocide.96
Conflict • 39
As in the 2006 Lebanon War, the major international NGOs—
par-
ticularly HRW and AI—joined with the OIC states that
dominate the
council, as well as the Palestinian leadership in campaigning for
establish-
ment of an inquiry. The Council adopted Resolution S-9/1 on 12
January
2009, creating the foundation for what became the Goldstone
inquiry, with
the mandate of investigating “all violations of international
human rights
law and international humanitarian law by the occupying Power,
Israel,
against the Palestinian people throughout the Occupied
Palestinian Terri-
tory, particularly in the occupied Gaza Strip.”97 (Goldstone was
a member
of the board of HRW, and following HRW’s advocacy, had
condemned
Israel during the war. He resigned from HRW after the
appointment to
head the commission.) Hamas violations, such as massive use of
human

shields,98 indiscriminate rocket fire,99 and the 2006 kidnapping
of an
Israeli soldier (Gilad Shalit), were not mentioned by the NGOs
or the
resolution establishing the fact-finding mission.100 This special
session and
its outcome reiterated the disproportionate NGO/UNHRC
emphasis on
the Arab-Israeli conflict. Between 24 December 2008 and 13
January 2009,
roughly the same period as the Gaza fighting, over 600 villagers
were mas-
sacred by Ugandan rebels in the Congo. Yet this was not
included in the
NGO/UNHRC agenda.
After the Goldstone commission was established, NGOs
provided
the substance of its subsequent report. A number of Israel-based
advocacy
groups, including the Public Committee Against Torture in
Israel, Physi-
cians for Human Rights-Israel, and Adalah participated in a
May 2009
NGO “town hall meeting” in Geneva held by the Goldstone
Commission.
A representative from PCATI spoke at the public sessions of the
Commis-
sion in July 2009, referring to “collective punishment” and
“[Palestinian]
martyrs”.101 In addition, the Association for Civil Rights in
Israel, Bimkom,
Gisha, HaMoked, PCATI, PHR-I, and Yesh Din submitted a
joint state-
ment to the Commission.102 The text does not address alleged
Hamas war

crimes, “. . . but rather offers our own distinct perspective—
human rights
violations for which Israel must be held accountable.”
This NGO document also makes entirely speculative assertions
about
the motivation for the IDF operation against Hamas, claiming
that “To the
extent that this was planned as a punitive operation which main
purpose
was not the achievement of actual military objectives, but the
inflicting
of deliberate damage as a deterrent and punitive measure.” The
submis-
sion also accuses the IDF of having “deliberately and knowingly
shelled
civilian institutions”, supporting the legal claim that “Israel
deviated from
the principle that allows harm only to military objectives, and
carried out
strikes against civilian sites in an effort to achieve political
ends.” References
and evidence are missing for many accusations, such as the
allegation that
“[m]any prisoners . . . were held in pits in the ground . . .
apparently dug
by the army”; details are sourced to “information in our
possession”.103
Goldstone’s report,104 published on 15 September 2009,
strongly

reflected these NGO submissions and statements. The text
referenced over
50 NGOs, including 70 references each for B’Tselem and the
PCHR, 27
for Breaking the Silence, and more than 30 each for Al-Haq,
HRW, and
Adalah. Significantly, many of these citations refer to
speculative issues
unrelated to the conflict in Gaza, seeking to brand Israeli
democracy as
“repressive”, and to widen the scope of the condemnations and
the resulting
political campaigns.
For example, closely following the HRW and AI, which rejected
Israeli
claims that Hamas used mosques for military purposes,
paragraph 495
claims that: “Although the situations investigated by the
Mission did not
establish the use of mosques for military purposes or to shield
military
activities, the Mission cannot exclude that this might have
occurred in
other cases.” IDF video material clearly documented mosques
being used
as weapons depots and even the site of a Hamas anti-aircraft
position.105
Similarly, the discussion of international legal claims106
mirrored the
NGO rhetoric, particularly with respect to collective
punishment, distinc-
tion and proportionality, and the use of human shields.
Goldstone adopted
the disputed legal claim published by the PLO Negotiation

Affairs Depart-
ment, and promoted by NGOs such as B’tselem, HRW, and AI,
that Gaza
remained “occupied” after the Israeli 2005 disengagement.107
Civilian casualty claims were also based largely on NGO
allegations
and estimates, with references to PCHR, HRW, AI, B’tselem,
and others,
and asserting (erroneously) that the “data provided by non-
governmen-
tal sources with regard to the percentage of civilians among
those killed
are generally consistent . . .”108 B’Tselem’s data differ
significantly from
PCHR’s, though both are unverifiable. PCHR’s list
characterizes Hamas
military figures, including Nizar Rayan and Siad Siam, as
civilians.109
After the publication of the Goldstone report, and its
recommenda-
tions, the NGO network campaigned for the adoption of its
punitive rec-
ommendations, particularly in the US and Western Europe. This
lobbying
effort continues, with as yet undetermined results.
Conflict • 41
NGO SOFT POW ER IMPACT ON H A R D POW ER
While academic boycotts, NGO campaigns, and UN

condemnations and
diplomatic scoldings are sometimes dismissed as of little
consequence in
terms of “hard power” dimensions of security, weapons and
military tech-
nology, intelligence, economic factors, etc., the overall impact
of the soft-
power targeting is significant and growing. Using the language
and mecha-
nisms of human rights and international law, the objective is to
apply the
South African model to Israel, allowing the NGOs to create
“symbolical
victims” and portraying themselves as altruistic rescuers of the
Palestinians,
to apply the framework developed by Heins.110 The 2001
Durban NGO
Forum declaration, adopted in South Africa, and proclaiming
the goal of
“the complete international isolation” of Israel highlights this
linkage. As
Irwin Cotler has stated, “A conference that was to commemorate
the dis-
mantling of apartheid in South Africa turned into a conference
that called
for the dismantling of Israel as an apartheid state.”111
Following efforts to implement this objective, in which the
power-
ful NGO transnational advocacy network plays a leading role,
increasing
evidence points to Israel’s growing international isolation.
Although the
“occupation” and settlements are cited as motivations for the
campaign,
the one-sided narrative places responsibility exclusively on

Israel, and treats
Palestinians as victims, often without examining behavior. This
reinforces
the view that the target is Israel’s existence as a sovereign
Jewish homeland,
and is not limited to the post-1967 dimensions of the conflict.
Anthony Julius argues that the new anti- Zionism “is predicated
on
the illegitimacy of the Zionist enterprise” that views Israel as
having been
“established by the dispossession of the Palestinian people . . .
enlarged by
aggressive wars waged against militarily inferior forces, and . .
. maintained
by oppression and brutality.”112 Julius as well as Christopher
Mayhew and
Michael Adams conclude that these views promote the argument
that, “It
is impossible to justify the continuance of the State of Israel”
on “legal,
historical or moral grounds”.113
The growing hard-power impacts of these soft-war campaigns,
led by
the NGOs, and based on human rights and international legal
claims can
be seen in a number of dimensions. Israeli links with Europe on
security,
and, to a growing degree, also on economic matters, have been
negatively
affected. There are also indications that this process is
extending to the
US and elsewhere. In the military and security dimensions,
including
operational considerations, the impact can be seen in a number

of recent
examples. In the 2006 Lebanon war, the international outcry and
pressure
originating with HRW’s false allegations regarding the number
of civilian
casualties in Qana, and amplified by journalists and political
leaders, led
PM Olmert to order a 48–hour halt in Israeli air strikes.
According to Harel
and Issacharoff, the Qana incident “was the best gift that
(Hezbollah leader)
Nasrallah could have hoped for as Hezbollah now had Arab and
interna-
tional backing and had no reason to accept the terms of a cease
fire.”114 This
allowed Hezbollah to redeploy its forces and probably extended
the war.
These campaigns based on allegations of violations of
international
law are also impacting Israel’s ability to acquire needed
weapons and
related equipment. International NGOs have been leading the
calls for
arms embargoes against Israel based on allegations of human
rights viola-
tions during the “second intifada”,115 the 2006 Lebanon
War,116 and the
2008–09 Gaza conflict.117 In the UK, AI and other NGOs
testify frequently
before UK parliamentary committees involved in arms exports,

and their
reports, accusing Israel of war crimes and deliberate attacks
against civilians,
are highlighted by major British media outlets.118
In 2000, the UK government began to reconsider the sale of F-
16
parts directly to Israel. While a 2002 government decision
allowed F-16
and Apache helicopter parts to be sold to a third party for
incorporation
and onward transfer to Israel, this was also halted (albeit
unofficially)
following the 2006 Lebanon War.119 During the 2008–09 Gaza
fighting,
British media and politicians emphasized AI’s claims that
weapons used by
Israel to carry out allegedly unlawful attacks included British
components.
According to the BBC, this report triggered the British
government’s deci-
sion to undertake a review of all military export licenses to
Israel.120 On 10
July 2009 the British government revoked five licenses for the
sale of Saar
4.5 naval parts to Israel. Ha’aretz cited “heavy pressure” from
NGOs and
MPs in explaining this decision. The British government did not
provide
evidence that the Saar gunboat was used in a way that violated
interna-
tional law, but rather “investigated” the likelihood that the
gunboat had
been used at all during the operation. This followed the NGO
practice
of portraying Israeli actions in Gaza as generally unlawful and

immoral,
meaning that any weapon that had been employed was assumed
to have
been used illegally.
In the short term, the British decision has more of a symbolic
rather
than practical impact, as most of Israel’s military imports
originate in the
US. However, Israeli officials have expressed concerns about
the widening
impact of the NGO campaign of delegitimization, including the
possibility
that other EU states may follow Britain’s lead, or that pressure
generated by
NGO criticisms will also eventually impede US arms transfers.
Conflict • 43
Divestment efforts are also accelerating. Following an NGO
campaign
led by the Coalition of Women for Peace via the “Who
Profits.org” project,
the Swedish and Norwegian state pension funds announced that
they were
divesting from Israeli defense contractors such as Elbit. The
Danske Bank
in Denmark is reportedly following this path.121 The economic
impact
of these specific divestment moves is marginal, but they
contribute to the
wider process. In addition, NGO-led lawfare against Israelis has
interfered

with travel and related interaction involving key individuals
from the politi-
cal, military, and security sectors. As noted, former foreign
minister and
current opposition leader Tzipi Livni was forced to cancel a trip
to Britain
in 2009, following efforts to initiate legal proceedings against
her related to
the 2008–09 Gaza conflict. The lawfare cases against Israeli
officials initiated
by NGOs in Spain, Holland, New Zealand, Australia, and
elsewhere (all of
which were eventually dismissed) had similar impacts.
Lawfare also exacts economic costs, as each case requires the
involve-
ment of legal experts focused on defending against and
defeating these
efforts. In Canada, an economically based lawfare case against a
Canadian
firm for commercial involvement in the construction of the
separation
barrier/beyond the 1949 armistice line (submitted by Al Haq
and other
NGOs) also required a defense and incurred legal costs, which
could deter
firms from doing business in Israel. (Like the other lawfare
cases, this one
was dismissed by the court, but the damage caused by the filing
and related
publicity was not undone.)
In what is expected to be the next round of this “soft power”
warfare,
these tangible hard-power dimensions are likely to increase. The
leaders of

the efforts to press for the adoption of the Goldstone report by
the UNSC,
including NGO officials, see this as accelerating and amplifying
the pro-
cess of imposing UN sanctions on Israel, including arms
embargoes. As in
other dimensions, this follows the South African model.
Although a UNSC
endorsement is considered unlikely, the UNGA, in which the
Arab and
Islamic bloc wields more power, is almost certain to endorse
Goldstone,
which will also add to the sanctions process, albeit with less
intensity.
Similarly, the NGO-led efforts to open proceedings against
Israeli
officials under the framework of the International Criminal
Court (ICC)
are designed to extend this process and its impact. In parallel,
the BDS
movement threatens to expand the hard-power impacts. BDS has
a number
of related dimensions, including academic and economic
boycotts, divest-
ment campaigns, and support for UN sanctions, as imposed on
rogue
states—Iraq under Saddam, North Korea, Iran, and the apartheid
regime
in South Africa.
The academic boycott was the first and perhaps the most visible

ele-
ment. While formal measures have been blocked, in part due to
legal issues,
evidence is growing of the impact of the informal or “silent”
boycott in
excluding Israeli academics from a number of frameworks.
Similarly, efforts
to promote widespread economic boycotts of Israeli products, as
well as
divestment campaigns are expanding.122
Thus, the effort to translate NGO soft power into hard power
through
these mechanisms continues. To counter these impacts wider
soft-power
warfare, the targets—particularly Israel—will need to find
remedies to
address the sources of NGO power.
SPE AK ING TRUTH TO NGO POW ER
The image of non-governmental organizations active in global
issues and
regional conflicts, as apolitical experts and impartial watch
dogs far removed
from the push and pull of politics, is no longer valid. In the past
decades,
NGOs have become major political powers, particularly in the
context of
the Arab-Israeli conflict. They exercise influence through
public discourse,
political advocacy, and legal proceedings. Using their
preferential access
to the media and diplomatic mechanisms, NGOs set agendas,
frame the
moral issues and factual allegations, and promote both soft- and

hard-power
strategies. As demonstrated, the two are closely related.
However, NGO accountability remains a serious problem. In
contrast
to government policy-making structures, there is virtually no
system of
checks and balances on the power of NGOs, and independent
analyses
have only just begun. While serious media outlets, such as the
New York
Times, have a semi-independent “public editor”, and other
institutions have
ombudsmen to expose ethical breaches, professional lapses, and
corruption,
such mechanisms are largely unknown among the powerful
NGOs. NGO
enthusiasts boast that these organizations are “everything that
governments
are not”,123 yet in many ways this is more of a curse than a
blessing.
This situation is amplified by the general absence of
transparency
among political NGOs, including with regard to decision
making, hiring
policies, and agenda-setting. In most cases, NGO officials stay
in their
positions for many years or decades, as in the case of Kenneth
Roth at
HRW. When the infrequent changes at the top do occur, as in
the case of
Amnesty International in 2010, these processes are closed,
highlighting the
NGO democracy deficit.

Conflict • 45
In the absence of accountability, transparency, and checks and
bal-
ances, the main engine driving NGO power is the funding that
they receive.
Money translates into power, influence, and the ability to
manipulate the
public debate, and the large international NGOs now have
operating bud-
gets in the tens of millions of dollars. In a 1990 decision
upholding limits
on corporate election campaign donations (McCain-Feingold),
the US
Supreme Court warned of “the corrosive and distorting effects
of immense
aggregations of wealth”. The same analysis can be applied to
the “aggrega-
tions of wealth” in the NGO community, and its role in
manipulating the
marketplace of ideas in the context of the Arab-Israeli conflict.
Foreign
governments, primarily in Europe, but also including some US,
Canadian,
Japanese, and Australian funds, are the primary source of the
“corrosive and
distorting effects”.
Moreover, in the case of Europe, the annual transfer of large
amounts
of government funds to a selected group of political NGOs (in
reality,
FONGOs, or Foreign Government-funded Non-governmental

Organi-
zations) often takes place without transparency. The EU has
refused to
release any significant documents related to the funding process
for NGOs
involved in Arab-Israeli issues, including the names and the
positions of
the officials involved, contending that such information
constitutes highly
classified and extremely sensitive state secrets. (This is another
example
of soft-power imitating hard power.) This lack of funding
transparency
exacerbates the problems of non-accountability.
Thus, in order to address these deficiencies in the activities of
political
NGOs, prescriptive initiatives should focus on the following
dimensions:
(1) Transparency (both for the funding process and the
organizations them-
selves); (2) Systems of accountability, such as an ombudsman,
and regular
independent investigations, which are built into the NGO
mechanisms;
(3) Mechanisms to ensure a balanced debate and critical
exchanges, and to
prevent a monopoly on the “marketplace of ideas”; (4)
Regulation, where
necessary, to ensure that these basic systems of “checks and
balances” are
implemented for powerful NGOs.
In an August 2010 speech, Tony Blair, speaking in his capacity
as the
Quartet’s special Middle East envoy, referred to demonization

as “a con-
scious or often unconscious resistance, sometimes bordering on
refusal, to
accept Israel has a legitimate point of view”. The supporters of
these politi-
cal attacks are characterized by an “unwillingness to listen to
the other side,
to acknowledge that Israel has a point, to embrace the notion
that this is a
complex matter that requires understanding of the other way of
looking at
it.” Blair compared the soft-power delegimization to the Iranian
threats to
“wipe Israel off the map”, noting that the former is “more
insidious, harder
to spot, harder to anticipate and harder to deal with, because
many of those
engaging in it, will fiercely deny they are doing so. It is this
form that is in
danger of growing, and whose impact is potentially highly
threatening.”124
Notes
1. UN Economic and Social Council, “List of non-governmental
organi-
zations in consultative status with the Economic and Social
Council as of 17
October 2007.” E/2007/INF/4. Accessed 12 December 2009,
http://esa.un.org/
coordination/ngo/new/INF2007.pdf.

2. “UN Human Rights Council.” Accessed 15 December 2009,
http://www2
.ohchr.org/english/bodies/hrcouncil/.
3. “World Conference against Racism, Racial Discrimination,
Xenophobia,
and Related Intolerance, 31 Aug.—7 Sep. 2001”. Accessed 28
November 2010,
http://www.un.org/WCAR/durban.pdf.
4. UN Committee on the Exercise of the Inalienable Rights of
the Palestin-
ian People. Accessed 15 December 2009,
http://www.un.org/Depts/dpa/qpalnew/
committee.htm.
5. Committee on the Elimination of Racial Discrimination.
Accessed 12
December 2009, http://www2.ohchr.org/english/bodies/cerd/.
6. Ann M. Florini, “Who Does What? Collective Action and the
Changing
Nature of Authority,” in Non-State Actors and Authority in the
Global System, ed.
Richard A. Higgott, Geoffrey R.D. Underhill, and Andreas
Bieler (London, 1999).
7. David Chandler, Constructing Civil Society: Morality and
Power in
International Relations (New York, 2004), 1.
8. Margaret E. Keck and Kathryn Sikkink, Activists beyond
Borders, Advocacy
Networks in International Politics (Ithaca, NY, 1998) 13.

9. “Amnesty International—Who Are We?” Accessed 7 January
2010, http://
www.amnesty.org/en/who-we-are/history.
10. HRW (Human Rights Watch), Financials, 16 November
2008. Accessed 23
June 2010, http://www.hrw.org/en/about/financials.
11. Kenneth Anderson, “Questions re Human Rights Watch’s
Credibility in
Lebanon Reporting,” Kenneth Anderson Laws of War Blog, 23
August 2006. Accessed
25 June 2010,
http://kennethandersonlawofwar.blogspot.com/2006/08/question
s-
re-human-rights-watchs.html.
12. Harel Ben-Ari, “Analytical Framework for the
Consideration of the Norma-
tive Position of International Non-Governmental Organizations
(INGOs) Under
International Law” (PhD diss., Bar Ilan University, 2009).
Conflict • 47
13. Chandler, Constructing Civil Society, 1.
14. Sarah Mandel, “Experts or Ideologues: Systematic Analysis
of Human
Rights Watch,” NGO Monitor Monograph Series, Jerusalem,
September 2009;
Benjamin Birnbaum, “Minority Report: Human Rights Watch
Fights a Civil War

Over Israel,” The New Republic, 27 April 2010. Accessed 14
December 2010, http://
www.tnr.com/article/minority-report-2.
15. Peter Willetts, introduction to ‘The Conscience of the
World’: The Influence of
Non-Governmental Organisations in the UN System, ed. Peter
Willets (Washington,
DC, 1996); and, “The Impact of Promotional Pressure Groups in
Global Politics,”
in Pressure Groups in the Global System: The Transnational
Relations of Issue-Oriented
Non-Governmental Organizations, ed. Peter Willets (London,
1982).
16. Blitt, “Who Will Watch the Watchdogs?”, 262–398.
17. Heins, Nongovernmental Organizations, 24.
18. Anderson, “Questions re Human Rights Watch’s
Credibility”.
19. Blitt, “Who Will Watch the Watchdogs?”, 288.
20. Joseph S. Nye, Jr., Soft Power: The Means to Success in
World Politics (New
York, 2004), x.
21. Ibid., 94.
22. Ruth W. Grant and Robert O. Keohane, “Accountability and
Abuses of
Power in World Politics,” The American Political Science
Review 99.1 (2005), 29–43,
especially 37.
23. Nye, Soft Power, 90.
24. Tanja Borzel and Thomas Risse, “Venus Approaching Mars?
The EU as an

Emerging Civilian World Power,” in Promoting Democracy and
the Rule of Law:
American and European Strategies, ed. Amichai Magen, Thomas
Risse, and Michael
McFaul (London, 2009).
25. Fred Tanner, Joanna Schemm, Kurt R. Spillmann, Andreas
Wenger. The
European Union as a Security Actor in the Mediterranean:
ESDP, Soft Power and
Peacemaking in Euro-Mediterranean Relations. Zürcher
Beiträge zur Sicherheits-
politik und Konfliktforschung, Nr. 61 (Zurich, 2001); George
Joffé, “European
Multilateralism and Soft Power Projection in the
Mediterranean,” Instituto Da
Defesa Nacional, Portugal, 2002. Accessed 18 December 2010,
http://www.idn
.gov.pt/publicacoes/consulta/NeD/NeD_101_120/NeD101/n_101
.pdf#page=11. For
a counter view see Adrian Hyde-Price, “’Normative’ Power
Europe: A Realist
Critique,” Journal of European Public Policy 13.2 (2006), 217–
34.
26. Vera van Hullen and Andreas Stahn, “Comparing EU and
US democracy
promotion in the Mediterranean and the Newly Independent
States,” in Promot-
ing Democracy and the Rule of Law: American and European
Strategies, ed. Amichai
Magen, Thomas Risse, and Michael McFaul (London, 2009).
27. Kaldor, Global Civil Society: An Answer to War, 129–30.
28. Officially, the Organization of the Islamic Conference.
29. Habibi, “Human Rights and Politicized Human Rights”, 8.

30. A 2006 UN reform resulted in the creation of the Human
Rights Council.
31. Statements and Press Releases issued by Amnesty
International during
the 58th Session of the UNCHR (UN Commission on Human
Rights), April
2002. Accessed 2 September 2009,
http://www.amnesty.org/en/library/asset/
IOR41/021/2002/en/c7ca49b0-d802-11dd-9df8-
936c90684588/ior410212002en.pdf,
p. 39.
33. William Korey, Taking on the World’s Repressive Regimes:
The Ford Foundation’s
International Human Rights Policies and Practices (London,
2007), 249–69; Edwin
Black, “Ford Foundation Aided Groups Behind Biased Durban
Parley,” Forward,
17 October 2003, Accessed 1 February 2010,
www.forward.com/articles/6855/
34. Heins, Nongovernmental Organizations, 16. In addition to
automatic admis-
sion for NGOs with ECOSOC status, other NGOs were able to
apply for special
accreditation for this conference. See “NGOs not in
Consultative Status with the
Economic and Social Council that have been accredited to the
World Conference

against Racism, Racial Discrimination, Xenophobia and Related
Intolerance.”
Accessed 8 January 2011,
http://www.un.org/durbanreview2009/pdf/Note_by_
the_Secretariat_on_NGO_accreditation.pdf .
35. Korey, Taking on the World’s Repressive Regimes, 249–69;
Black, “Ford
Foundation Aided Groups Behind Biased Durban Parley”.
36. Paul Lungen, “Iran tries to exclude CIJA from Durban II
Conference,” The
Canadian Jewish News, 24 April 2008. Accessed 23 June 2010,
http://www.cjnews
.com/index.php?option=com_content&task=view&id=14521&Ite
mid=86
37. UNGA Preparatory Committee Third session, 5 July 2001,
A/CONF.189/
PC.3/ Accessed 21 December 2009,
http://www.racism.gov.za/substance/confdoc/
decldraft189b.htm.
38. Korey, Taking on the World’s Repressive Regimes, 249.
39. Ibid., 251.
40. Irwin Cotler, “Durban’s Troubling Legacy One Year Later:
Twisting the
Cause of International Human Rights Against the Jewish
People,” Jerusalem Issue
Brief 2:5, Institute for Contemporary Affairs/Jerusalem Center
for Public Affairs,
August 2002. Accessed 2 January 2010,
http://www.jcpa.org/brief/brief2-5.htm.
41. NGO Forum at Durban Conference 2001. Accessed 20

January 2010, http://
www.ngo-
monitor.org/article/ngo_forum_at_durban_conference_
42. Korey, Taking on the World’s Repressive Regimes, 250.
43. The IDF entered the Jenin refugee camp following a series
of terror attacks
against Israeli civilians. In response, Palestinian officials such
as Saeb Erakat alleged
that Israel had killed five hundred people, and committed “war
crimes”. Dore Gold,
Tower of Babble: How the United Nations has Fueled Global
Chaos (New York, 2004),
212–8. See also Dr. David Zangen, “Seven Lies about Jenin,”
IMRA, 8 November
2002 (translated from Ma’ariv).
44. Martin Seiff, “Analysis: Why Europeans Bought Jenin
Myth,” UPI, 20
May 2002. Accessed 13 December 2009,
http://www.upi.com/Business_News/
Conflict • 49
Security-Industry/2002/05/21/Analysis-Why-Europeans-bought-
Jenin-myth/
UPI-34731022008462/.
45. Margaret Wente, “Call it Sham-nesty International, an
Apologist for Terror,”
Toronto Globe and Mail, 9 May 2002. Accessed 12 December
2009, http://www

.ngo-monitor.org/article.php?id=585.
46. ReliefWeb, “Caritas Aid Workers Witness the Horror of
Jenin,” Catholic
Agency for Overseas Development, 29 April 2002. Accessed 6
www.reliefweb.int/rw/rwb.nsf/db900sid/ACOS-
64BMEG?OpenDocument.
47. In explaining the absence of reports on Palestinian terror
attacks, HRW
officials argued that international humanitarian law did not
apply to non-state
actors and “militant groups”. “Transcript of interview with
Urmi Shah from HRW,”
broadcast in Jenin: Massacring the Truth, produced and directed
by Martin Himel,
Elsasah Productions, for Global Television Network, Inc., July
2004. Accessed 8
January 2010, http://www.ngo-monitor.org/article.php?id=1023.
48. HRW, “News: Israel and the Occupied Territories,” 2002.
Accessed 3 January
2010, http://www.hrw.org/en/news-filter/228?page=16.
49. HRW, “Jenin: IDF military operations,” May 2002.
Accessed 23 June 2010,
www.hrw.org/reports/2002/israel3/.
50. dem.
51. Idem.
52. Asher Fredman, “Precision Guided or Indiscriminate? NGO
Reporting on
Compliance with the Laws of Armed Conflict,” NGO Monitor (
Jerusalem, 2010).

53. UN Report of the Secretary-General prepared pursuant to
GA resolution
ES-10/10. Accessed 12 April 2010,
http://www.un.org/peace/jenin/.
54. Idem.
55. Kenneth Roth, CNN, 10 December 2002.
56. Palestinian Centre for Human Rights, Letter to Mary
Robinson UNHCHR,
Geneva, Switzerland, 22 April 2002. Accessed 22 December
2009, http://www
.pchrgaza.org/Interventions/robinson_22april2002.pdf.
57. UNCHR—Report on the Fifty-Eighth Session, 18 March–26
April 2002.
Accessed 12 December 2009,
http://www.unhchr.ch/Huridocda/Huridoca.nsf/
(Symbol)/E.2002.23++E.CN.4.2002.200.En?Opendocument.
58. The founder of Al-Haq, Charles Shamas, is also on the
board of Human
Rights Watch.
59. Al-Haq to the 58th Annual Session of the UNCHR, 2 April
2002. Accessed
13 January 2003,
http://unispal.un.org/UNISPAL.NSF/0/A909C78C53AB1F3785
2571000077633B.
60. UNCHR—58th Annual Session. Accessed 12 December
2009, http://www
.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.2002.23++E.CN
.4.2002.200
.En?Opendocument.

61. UN, GA/10449, 15 March 2006. Accessed 23 June 2010,
http://www.un.org/
News/Press/docs/2006/ga10449.doc.htm.
62. Database of written statements submitted to the UN Human
Rights Coun-
cil. Accessed 4 November 2009,
http://ap.ohchr.org/documents/sdpage_e.aspx?
b=10&se=1&t=7.
63. “To call Israel a Nazi state, however, as is commonly done
today, or to accuse
it of fostering South African-style apartheid rule or engaging in
ethnic cleansing
or wholesale genocide goes well beyond legitimate criticism.”
Alvin H. Rosen-
feld, “Progressive” Jewish Thought and the New Anti-Semitism,
American Jewish
Committee, New York, 2006; Interview with Gideon Shimoni,
“Deconstructing
Apartheid Accusations Against Israel,” Post-Holocaust and
Anti-Semitism, Jeru-
salem Center for Public Affairs, 60.2, September 2007; “Report
of the All-Party
Parliamentary Inquiry into Antisemitism,” UK All-Party
Parliamentary Group
Against Antisemitism, Westminster, September 2006.
64. UNGA, “Civil Society Makes Voices Heard During United
Nations Public
Forum in Support of Palestinian People,” 10 June 2009.

http://www.un.org/News/Press/docs/2009/gapal1132.doc.htm.
65. dem.
66. Alexander Downer, “Extremist Islam Holds Little Appeal,”
Middle East Quar-
terly, Fall 2005. Accessed 13 April 2010,
http://www.meforum.org/779/alexander-
downer-extremist-islam-holds-little.
67. “ADL to Ban Ki-Moon: UN Should Dismantle Anti- Israel
Committee,” 20
July 2009. Accessed 13 April 2010,
http://www.adl.org/PresRele/UnitedNations_94/
5568_94.htm.
68. Civil Society Network on the Question of Palestine,
Division for Palestin-
ian Rights, DPA/UN. Accessed 23 April 2010,
http://www.un.org/depts/dpa/qpal/
ngo/index.html.
69. Office of UNHCHR, NGO documents and updates submitted
at the 69th
session of CERD, Feb. 2007. Accessed 31 January 2010,
http://www2.ohchr.org/
english/bodies/cerd/cerds69-ngos.htm.
70. Roselle Tekiner, “Race and the Issue of National Identity in
Israel,” Interna-
tional Journal of Middle East Studies 23.1 (1991), 39–55.
71. HRW: “Israel: West Bank Barrier Endangers Basic Rights:
U.S. Should Deduct
Costs From Loan Guarantees,” 1 October 2003. Accessed 9
January 2010, http://www

.hrw.org/en/news/2003/09/30/israel-west-bank-barrier-
endangers-basic-rights.
72. Tim Costello, “For the Children’s Sake, Tear Down this
Wall!” The Age
(Melbourne) 14 July 2004.
73. Christian Aid, “Why the Israeli ‘Barrier’ is Wrong,” 24 Feb.
2004. Reprinted
on Relief Web. Accessed 11 January 2011,
http://reliefweb.int/rw/rwb.nsf/0/f45d12
968829b6c585256e45007cb1cb?OpenDocument&Click=
74. Declaration of Judge Buergenthal (dissent). Accessed 26
January 2010,
http://www.sharingjerusalem.org/pdf_Declaration_Judge_Buerg
enthal.pdf.
75. UNGA, “Report of the Commission of Inquiry on Lebanon
Pursuant to
Human Rights Council resolution S-2/1,” 23 November 2006,
16. Accessed 1 February
Conflict • 51
2010,
http://www2.ohchr.org/english/bodies/hrcouncil/docs/specialses
sion/A.HRC
.3.2.pdf.
76. Idem.
77. Simon Wiesenthal Centre News Release, 17 October 2008.
Accessed 7 Janu-

ary 2010,
http://www.wiesenthal.com/site/apps/nlnet/content2.aspx?c=lsK
WLbPJ
LnF&b=4924937&ct=6269575.
78. HRW, “UN Race Conference Undermined by Western
Withdrawals,” 19
April 2009. Accessed 2 January 2010,
http://www.hrw.org/en/news/2009/04/19/
un-race-conference-undermined-western-withdrawals.
79. HRW, “Don’t Let Any Nations Derail UN Racism
Conference,” 16
April 2009. Accessed 2 January 2010,
http://www.hrw.org/en/news/2009/04/16/
dont-let-any-nations-derail-un-racism-conference.
80. NGO Monitor, Durban Review Conference 2009, 15 June
2009. Accessed
13 April 2010, http://www.ngo-
monitor.org/article/durban_conference_0.
81. UN Watch, “UN Watch at Durban II”. Accessed 13
December 2009, http://
www.unwatch.org/site/c.bdKKISNqEmG/b.5156579/k.6720/UN
_Watch_at_
Durban_II.htm.
82. Mirek Prokes, “WCAR NGO Forum—Analysis from the
Organizational Point
of View,” 22 September 2001. Accessed 23 June 2010,
http://www.unitedagainstracism
.org/pages/anWCAR.htm.
83. Edwin Black, JTA, “Anti-Israel Activists at Durban Were

Funded by the Ford
Foundation,” 16 October 2003. Accessed 23 June 2010,
http://www.papillonsartpalace
.com/aJnti.htm.
84. For a detailed analysis, see Gerald M. Steinberg, “Soft
Powers Play Hard-
ball: NGOs Wage War against Israel,” Israel Affairs 12.4
(2006), 748–68; see also
NGO Monitor, “NGOs and the BDS Movement: Background and
Funding,”
presented at the Global Forum on Antisemitism, Jerusalem,
December 2009.
Accessed 24 August 2010, http://www.ngo-
monitor.org/article/ngos_and_the_bds_
movement_background_funding_and_strategic_options.
85. For a detailed study of the forces that contributed to the
academic boycott
movement in the UK, see Manfred Gerstenfeld, “The Academic
Boycott Against
Israel,” Jewish Political Studies Review 15.3–4 (2003), 9–70;
see also Ronnie Fraser,
“The Academic Boycott of Israel: Why Britain?,” Papers in
Post-Holocaust and Anti-
Semitism 36 (1 September 2005); Jerusalem Centre for Public
Affairs. Accessed 19
April 2010, www.jcpa.org/phas/phas-36.htm.
86. Fraser, “The Academic Boycott of Israel: Why Britain?”
87. HRW, “Razing Rafah: Mass Home Demolitions in the Gaza
Strip,” October
2004. Accessed 24 August 2010,
www.hrw.org/reports/2004/rafah1004/.
88. NGO Monitor, “HRW and Amnesty Promote Caterpillar

Boycott,” 13 April
2005. Accessed 31 August 2010, http://www.ngo-
monitor.org/article.php?id=527.
89. Willie Jackson, “Economic Retaliation against Tel Aviv,”
Le Monde Diploma-
tique- English edition, September 2009. Accessed 23 June 2010,
http://mondediplo
.com/2009/09/12israelboycott.
90. Barry Brown, “Toronto Film Festival Ignites Anti-Israel
Boycott,” The Wash-
ington Times, 5 September 2009. Accessed 23 June 2010,
http://www.washingtontimes
.com/news/2009/sep/05/filmmakers-react-anti-israel-film-
festival-protest/.
91. “Building a Political Firewall Against Israel’s
Delegitimization: Conceptual
Framework,” Reut Institute, March 2010. Accessed 24 April
2010, http://reut-institute
.org/data/uploads/PDFVer/20100310%20Delegitimacy%20Eng.p
df.
92. Anne Herzberg, “NGO ‘Lawfare’: Exploitation of Courts in
the Arab-Israeli
Conflict,” 2nd edition, December 2010 (Steinberg, ed.).
http://www.ngo-monitor.org/data/images/File/lawfare-english-
executive.pdf.

93. Gerald Steinberg, ed., NGO Monitor Monograph Series,
“The NGO Front
in the Gaza War. The Durban Strategy Continues,” February
2009. Accessed 7 Jan-
uary 2010, http://www.ngo-
monitor.org/data/images/File/NGO_Front_Gaza.pdf.
94. UNHRC 9th Special Session, Oral Statements, 12 January
2009. Accessed
13 April 2010,
http://www.un.org/webcast/unhrc/archive.asp?go=090112.
95. Idem.
96. UNHRC 9th Special Session, 8 January 2009. Accessed 26
unispal.un.org/UNISPAL.NSF/0/DC9AD14F2973AC668525753
C006CE580.
97. UNHRC 9th Special Session Report, 27 February 2009.
Accessed 6 June
2009,
http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/
9/docs/
A-HRC-S-9-2.doc.
98. Video: Hamas brags about using woman and children as
human shields.
January 2009. Accessed 2 January 2010,
http://www.mererhetoric.com/archives/
11275301.html.
99. HRW, “Rockets from Gaza”. Accessed 2 January 2010,
http://www.hrw.org/
en/reports/2009/08/06/rockets-gaza-0.
100. Steinberg, “The NGO Front in the Gaza War”.

101. “PCATI testifies before the UN Goldstone commission”,
14 July 2009.
Accessed 23 May 2010,
http://www.stoptorture.org.il/en/node/1457.
102. The Association for Civil Rights in Israel, Gisha, The
Public Committee
Against Torture in Israel, HaMoked: Center for the Defence of
the Individual, Yesh
Din, Adalah, Physicians for Human Rights-Israel. Submission of
Human Rights
Organizations based in Israel to the Goldstone Inquiry
Delegation, Adalah’s News-
letter 61, June 2009. Accessed 19 April 2010,
http://www.adalah.org/newsletter/
eng/jun09/goldstone%20report_and_appendix[1].pdf.
103. “Submission of Human Rights Organizations based in
Israel to the Gold-
stone Inquiry Delegation,” June 2009. Accessed 18 August
2010, http://www.acri
.org.il/pdf/goldstone1.pdf.
104. Report of the UN Fact Finding Mission on the Gaza
Conflict, Human Rights
in Palestine and Other Occupied Arab Territories, UN Human
Rights Council,
12th session, Agenda item 7, 15 September 2009. Accessed 19
April 2010, http://
www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs
/UNFFMGC_
Report.pdf.

Conflict • 53
105. Israel Ministry of Foreign Affairs, “IDF Operation in
Gaza: Cast Lead,” IDF
Video: Hamas heavy weapons found inside mosque, 21 January
2009. Accessed
18 August 2010, http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/
Terrorism+and+Islamic+Fundamentalism-
/Aerial_strike_weapon_development_
center+_Gaza_28-Dec-2008.htm.
106. Abraham Bell, “A Critique of the Goldstone Report and its
Treatment of
International Humanitarian Law,” American Society of
International Law Proceed-
ings; 104; San Diego Legal Studies Paper No. 10–019, 31 March
2010. Accessed 1 April
2010, http://ssrn.com/abstract=1581533.
107. Report of the UN Fact Finding Mission on the Gaza
Conflict, Human
Rights Council, 12th Session, 15 September 2009, 9.
108. Ibid, 10.
109. Professor Elihu D Richter MD MPH and Dr. Yael Stein
MD, Com-
ments on B’Tselem’s Civilian Casualty Estimates in Operation
Cast Lead, 14
September 2009. Accessed 21 April 2010, http://www.ngo-
monitor.org/article.php?
viewall=yes&id=2638.
111. Irwin Cotler, “Voices on Antisemitism,” United States
Holocaust Memorial

Museum, 5 June 2008. Accessed 23 May 2010,
http://www.ushmm.org/museum/
exhibit/focus/antisemitism/voices/transcript/?content=20080605
.
112. Anthony Julius, Contemporary Secular Anti-Zionisms
(New York, 2010), 456.
113. Quoted in Julius, Contemporary Secular Anti- Zionisms,
457.
114. Amos Harel and Avi Issacharoff, Spider Webs (Tel-Aviv,
2008), 337 [Hebrew].
115. See the October 2000 letter signed by 20 organizations
include Amnesty
International (AI) and Human Rights Watch (HRW), urging U.S.
Secretary of State
Albright to suspend the sale of helicopters to Israel. Accessed
24 May 2010, http://
www.ncccusa.org/news/01news48.html; and a 16 August 2001
BBC news story
quoting Kate Allen, AI’s UK director, that “logic demanded a
halt to the export
licenses [to Israel]”. Accessed 4 April 2010,
http://news.bbc.co.uk/2/hi/uk_news/
politics/1494543.stm.
116. “Israel/Lebanon: War Crimes without Accountability,”
Amnesty International,
12 July 2007. Accessed 27 August 2010,
http://www.amnesty.org/en/library/asset/
MDE02/001/2007/en/41eb7c2a-d37c-11dd-a329-
2f46302a8cc6/mde020012007en
.html; and HRW, “Fatal Strikes: Israel’s Indiscriminate Attacks
Against Civilians
in Lebanon,” 2 August 2006. Accessed 27 August 2010,
http://www.hrw.org/en/

reports/2006/08/02/fatal-strikes.
117. See, for example, AI, “ Fuelling [sic] Conflict: Foreign
Arms Supplies to
Israel/Gaza,” 23 February 2009. Accessed 27 August 2010,
http://www.amnestyusa
.org/countries/israel_and_occupied_territories/fuellingconflict.p
df.
118. See Asher Fredman’s analyses at length on the role of AI
and HRW in shaping
public perceptions of the IDF’s actions in Gaza, and in
influencing British decisions
regarding arms sales to Israel (forthcoming manuscript, on file
with the author.)
119. Testimony of Bill Rammell MP, then minister of state at
the Foreign and
Commonwealth Office, to the Committees on Arms Export
Controls, 22 April 2009.
Accessed 28 August 2010,
http://www.publications.parliament.uk/pa/cm200809/
cmselect/cmquad/178/9042201.htm.
120. BBC, “UK Cuts Israel Weapons Contract,” 13 June 2009.
Accessed 28
August 2010,
http://news.bbc.co.uk/2/hi/middle_east/8147377.stm.
121. “Israeli companies excluded from bank’s investments,”
The Copenhagen
Post, 25 January 2010. Accessed 23 June 2010,

http://www.cphpost.dk/component/
content/48048.html?task=view.
122. Daniel Bettini, “Pulling out: Europes economic boycott of
Israel expanding,”
Ynet, 27 August 2010. Accessed 31 August 2010,
http://www.ynetnews.com/articles/
0,7340,L-3943666,00.html.
123. William F. Fisher, “Doing Good? The Politics and
Antipolitics of NGO
practices,” Annual Review of Anthropology 26 (1997), 444.
http://www.jstor.org/stable/2952530.
124. Speech by the Quartet Representative Tony Blair, Herzliya,
24 August 2010.
Accessed 31 August 2010,
http://www.tonyblairoffice.org/news/entry/tony-blair-
welcomes-re-start-of-direct-peace-talks-during-herzliya-
speech/.
Copyright of Israel Studies is the property of Indiana University
Press and its content may not be copied or
emailed to multiple sites or posted to a listserv without the
copyright holder's express written permission.
However, users may print, download, or email articles for
individual use.

Guest Editors' Introduction
Human Rights and Business
Wesley Cragg
York University
Denis G. Arnold
University of North Carolina, Charlotte
Peter Muchlinski
School of Oriental and African Studies
ABSTRACT: We provide a brief history of the business and
human rights discourse
and scholarship, and an overview of the articles included in the
special issue.
KEY WORDS: business, human rights, UN Framework, Ruggie,
corporations
DISCUSSION OF BUSINESS AND HUMAN RIGHTS from an
expUcitly ethicalperspective has a unique history. Prior to the
last decade of the last century, it
was rarely discussed or examined. This might at first glance
seem rather surprising.
The idea of human rights has been the subject of intense inquiry
and debate now
since the renaissance and on some accounts before (Lloyd 1991,
Lee and Lee 2010).
The pursuit of human rights has motivated revolutions, for
example the American
and French revolutions. Debates about their ethical, political
and legal status and
foundations have played a central role in academic and political
discourse since the
Enlightenment. In the twentieth century, the practical political

challenges of embed-
ding human rights in intemational law have dominated the
agendas of emerging
intemational institutions like the United Nations, particularly
since the end of the
Second World War. In contrast, the first discussion of business
and human rights
in intemational institutions can be traced back only to the 1980s
with the draft UN
Code of Conduct on Transnational Corporations (United Nations
1984). Even with
this UN initiative, significant academic attention to the topic
was ignited only in
the early to mid-1990s (an important early work is Donaldson
1991). Surprising
as this late emergence of the subject might seem, the reasons
are not hard to find.
Until late in the last century, it was conventional wisdom that
the responsibility for
protecting and advancing and etihancing respect for human
rights lay with govem-
ment (Ruggie 2006 and 2007). On this view, the only human
rights responsibilities
of the private business sector were indirect legal
responsibilities. It was only in the
1990s that doubts about the efficacy of this allocation of
responsibilities began to
gain widespread attention, driven, it is widely agreed, by the
phenomenon of glo-
balization (Chandler 2003, Ruggie 2006, Kobrin 2009, Cragg
2010, Lee and Lee
©2012 Business Ethics Quarterly 22:1 (January 2012); ISSN
1052-150X pp. 1-7

2 BUSINESS ETHICS QUARTERLY
2010). By extending the economic importance and reach
particularly of multinational
corporations, a process encotiraged and facilitated by national
and intemational laws
and treaties limiting in significant ways the capacity of
governments to control the
movement of goods based, for example, on the conditions under
which they were
produced, globalization gave rise to serious questions about
both the ability and
the willingness of national govemments to fulfil their human
rights responsibilities.
As Geoffrey Chandler points out (2003), the first red flags were
raised by NGOs
like Amnesty Intemational in 1991. However, the real catalyst
for change was "the
arbitrary execution of Ken Saro-Wiwa and eight other Ogonis"
by the Nigerian
Govemment in November 1995 (Chandler 2003), an event whose
character and
impact are explored in this volume of essays by Florian
Wettstein (2012). It was
subsequent to this event that human rights commitments began
to appear in the
voluntary ethics codes of major multinational corporations and
industry associa-
tions encouraged by govemment exhortations and pressed by
NGOs increasingly
determined to hold corporations with intemational business
interests to account for
human rights abuses.

An early sign that significant shifts in views about the
allocation of human rights
responsibilities between the public and private sectors were
under way occurred in
1998 when the United Nations Sub-Commission for the
Promotion and Protection
of Human Rights established a sessional working group to study
and report on hu-
man rights and business. What followed in 2003 was a report
entitled "Norms on
the Responsibilities of Transnational and Other Business
Enterprises with Regard
to Human Rights." At the core of the report was the proposal
that transnational
corporations and other business entities should be brought
directly under the am-
bit of intemational human rights law, humanitarian law,
intemational labor law,
environmental law, anti-corruption law and consumer protection
law (Hillmanns
2003: 1070). That is to say, the report was calling for a
dramatic shift away from
the prevailing conventions and assumptions allocating the
fundamental responsi-
bility for protecting and promoting human rights to the State.
Not surprisingly, the
report aroused strident opposition on the part of a significant
section of the business
community and govemments (Amold 2010). While the report
was never formerly
endorsed by the UN, it did have two significant impacts. First,
it resulted in a se-
ries of recommendations that eventually led the UN Secretary
General to appoint,
in 2005, a special representative, John Ruggie, to take up the
issue of the human

rights responsibilities of transnational corporations and other
business enterprises.
Its second significant impact was to bring into sharp relief three
key questions: Was
it appropriate to bring corporations under the ambit of
intemational law heretofore
focused on nation states and to a lesser degree on individuals?
Did corporations
have human rights responsibilities beyond those set out by law
whether domestic
or intemational? If the human rights responsibilities of
corporations did extend
beyond those required by law, what exactly was the nature of
those responsibilities?
The work of the UN Sub Commission both stimulated and was
supported by
legal scholarship concemed to determine whether enterprises
that enjoy the pro-
tection of certain human rights could also be understood to have
human rights
responsibilities or duties. The result was a growing consensus
based on analogy
HUMAN RIGHTS AND BUSINESS 3
with the responsibilities owed by natural persons to observe
human rights and the
fact that large transnational corporations in particular both had
the power to infringe
human rights and were guilty of significant human rights
abuses, that it followed
that transnational corporations could be understood to have
direct human rights

responsibilities (Clapham 2006).
Over the last two decades, legal practice has also moved in this
direction evidenced
by litigation under the US Alien Torts Claim Act and some
important developments,
in common law jurisdictions, concerning parent company
liability for human rights
related harms caused by overseas subsidiaries. Similar
developments have also
taken place in civil law countries, notably in France and the
Netherlands, where
lawyers have begun to engage in socially entrepreneurial public
interest litigation
(Muchlinski 2009). On the other hand, legislative attempts to
extend human rights
liabilities to home based companies, in the form of private
members bills in the US
Congress and the Parliaments of Australia, the United Kingdom
and Canada, have
all met with failure.
Business ethics scholars have also found themselves drawn into
the debate first
by reflections on the phenomenon of globalization and its
human rights impacts
and also by the work of the UN Sub Commission and the more
recent work of the
Special Representative of the UN Secretary General, John
Ruggie (2006,2007,2008,
2010, 2011). Business ethics scholars have argued that
transnational corporations
have direct human rights obligations on contractualist grounds
(Donaldson 1991,
Cragg 1999) and on an agent based conception of human rights
(Arnold 2010). They

have also defended the use of human rights as potentially
enforceable transnational
norms of conduct for TNCs (Campbell 2006, Kobrin 2009).
Other scholars have
challenged the applicability or usefulness of rights language
pertaining to corporate
obligations in non-Western contexts (Strudler 2008). As
evidenced by the contribu-
tions to this special issue, discussion and research have ranged
across the ethical
dimensions of all three of the questions brought into focus by
the debate generated
by the Draft UN Norms.
In 2011 the United Nations Human Rights Council endorsed the
"Protect, Respect
and Remedy" Framework submitted by John Ruggie as Special
Representative of
the Secretary General of the United Nations. In that report he
proposed the adoption
of a framework that addresses all three of the questions
highlighted by the earlier
work of the Sub Commission described above. Ruggie's
framework features a State
duty to protect human rights, a corporate responsibility to
respect human rights,
access to effective remedies for human rights abuses and a
responsibility on the part
of all actors to engage in due diligence with a view to
identifying and managing
responsibly the potential and actual human rights impacts of
their activities. The
work of John Ruggie and his proposed framework, now referred
to widely as the
UN Framework, have had the effect of further sharpening and
structuring discussion

on the human rights responsibilities of transnational
corporations particularly with
regard to their operations in developing and underdeveloped
parts of the world, in
zones of conflict, and in areas in which government has become
seriously dysfunc-
tional or deeply and systemically corrupt.
The influence of John Ruggie's work and his recommendations
can be seen
to be in play in this special issue (Cragg 2012, Wood 2012,
Wettstein 2012, and
MucMinski 2012).
As Peter Muchlinski (2012) points out, the proposal that
corporations have direct
human rights responsibilities, is "significant, if not
revolutionary." Though this re-
sponsibility is not a legally binding one under international law,
nonetheless it directly
challenges prevailing conventional legal wisdom in
international law that holds that
only governments and to a much lesser degree individuals have
direct human rights
responsibilities. At the heart of Ruggie's framework is the view
that corporations
have a responsibility to respect human rights particularly where
international and
national human rights law does not reach or is not enforced.
Corporations should
take up this responsibility, Ruggie argues, to avoid reputational
and other risks aris-

ing from rising public expectations surrounding their "social
licence to operate"
combined with increased public scrutiny which are all a
consequent of globalization.
The first paper in this special issue (Cragg 2012) examines the
"enlightened self
interest" account Ruggie argues provides corporations with a
persuasive reason
to take up the "responsibility to respect" and identifies it as a
serious weakness in
the justificatory foundations of the UN Framework. The paper
argues that the UN
Framework can be expected to acquire significant traction on
the part of transna-
tional corporations only if the corporate responsibility to
respect human rights is
clearly demonstrated to be and acknowledged by corporations
themselves to be a
direct and explicitly ethical or moral obligation, a moral
obligation that is distinct
from their obligation to obey the law. The paper argues that
paradoxically the most
effective way of extending the direct reach of international
human rights law to
include transnational corporations is to acknowledge, and
persuade the corporate
sector to acknowledge, that the "responsibility to respect"
human rights is in the
first instance an explicit and direct moral obligation
The UN Framework constructed by John Ruggie (2008, 2010,
2011) allocates
to governments the duty to protect, a positive duty, and to
corporations the duty to
respect, an essentially negative duty to do no harm. In "Silence

as Complicity: Ele-
ments of a Corporate Duty to Speak Out against the Violation of
Human Rights,"
Florian Wettstein (2012) challenges this allocation of
responsibilities. He argues that
when four conditions are satisfied—voluntariness, connection to
the human rights
violation, power to significantly influence the perpetrator, and a
certain social or
political status—corporations have a positive moral obligation
to speak out against
human rights abuses perpetrated by governments with a view to
protecting or help-
ing to protect potential or actual victims.
Building on conditions similar to those set out in Florian
Wettstein's analysis of
silent complicity, Stepan Wood questions, in the third article,
John Ruggie's rejec-
tion of the view that "sphere of influence" should play a role in
defining the human
rights responsibilities of corporations. To the contrary, Stepan
Wood argues, the
ability of corporations to influence the actions of others as a
result of their relation-
ships or "their leverage" does generate significant moral
obligations that go beyond
the "responsibility to respect," a negative moral responsibility
to do no harm, to
include a responsibility to protect human rights, a positive
moral responsibility to

do good. The central purpose of Wood's analysis is then to
define the nature of the
responsibilities that come with leverage.
If we accept that corporations have human rights
responsibilities, then the next
task is to define the responsibilities of corporations for ensuring
that their human
rights responsibilities are effectively fulfilled. A related set of
issues concems the
responsibilities of other key players for ensuring that
corporations fulfil those re-
sponsibilities. Individual and institutional investors are an
example. A formal feature
of Canadian corporate law permits equity holders to bring
shareholder proposals to
the attention of other equity investors for discussion and
decision by formal vote.
In 2008, a group of institutional investors used a shareholder
proposal to persuade
a large Canadian gold mining company, Goldcorp, to
commission a human rights
impact assessment of the operations of its Marlin Mine in
Guatemala. In the fourth
article, Aaron Dhir (2012) analyzes the law allowing
shareholder proposals (the
very controversial use made of the shareholder proposal tool to
bring about a human
rights impact assessment of the Marlin Mine), implementation
of the subsequent
assessment, its impact on communities adjacent to the mine and
the implications
of this initiative for the ethical use of shareholder proposals.
In the fifth, penultimate, article, John Bishop (2012) strikes a
cautionary note

pointing out that with responsibilities come rights. If
corporations have human
rights responsibilities, they must be accorded the rights required
to fulfill those
responsibilities. It is important therefore to identify carefully
the rights required
by corporations as the nature and scope of their human rights
responsibilities are
delineated. A key purpose of this article is to undertake that
analysis and to assess
the boundaries of corporate human rights responsibilities
through a consideration
of the boundaries appropriately placed on the nature and scope
of corporate rights.
In the concluding paper in this special issue, Peter Muchlinski
(2012) argues that
the UN Framework requirement that corporations exercise due
diligence for the
purpose of ensuring that they meet their responsibility to
respect human rights will
lead to the evolution of legally binding duties under both
national and intemational
law. He suggests that the development of binding duties will be
of particular value to
involuntary stakeholders. Finally, picking up a theme central to
the first paper in the
special issue, he suggests that the result of an evolving
understanding of the human
rights duties in corporate law might well be a view of the
purpose of the contempo-
rary shareholder owned corporation that goes beyond
enlightened shareholder self
interest to a stakeholder focus grounded on a more integrated
ethical understanding
of the role of business in society in the twenty-first century.

NOTE
To preserve the integrity of the editorial process, the editors of
the special issue played no role in the review
of the papers by Cragg and Muchlinski. Those submissions to
the special issue were instead managed by
former editor-in-chief and current senior associate editor Gary
Weaver.
REFERENCES
Arnold, D. G. 2010. "Transnational Corporations and the Duty
to Respect Basic Human
Rights," Business Ethics Quarterly 20(3): 371-99.
Bishop, John. 2012. "The Limits of Corporate Human Rights
Obligations and the Rights of
For-Profit Corporations," Business Ethics Quarterly 22(1): 1 1 9
^ 4 .
Campbell, Tom. 2006. "A Human Rights Approach to
Developing Voluntary Codes of
Conduct for Multinational Corporations," Business Ethics
Quarterly 16(2): 255-69.
Chandler, Geoffrey. 2003. "The Evolution of the Business
Human Rights Debate," in
Business and Human Rights, ed. Rory Sullivan, 22-32
(Sheffield, UK: Greenleaf
Publishing Ltd.).

Clapham, Andrew. 2006. "Corporations and Human Rights," in
Human Rights Obligations
of Non-State Actors, chap. 6 (Oxford: Oxford University Press).
Cragg, W. 1999. "Human Rights and Business Ethics:
Fashioning a New Social Contract,"
Journal of Business Ethics 27(1-2): 205-14.
2010. "Business and Human Rights: A Principle and Value-
Based Analysis,"
in Oxford Handbook of Business Ethics, ed. George Brenkert
and Tom Beauchamp,
267-305 (Oxford: Oxford University Press).
.. 2012. "Ethics, Enlightened Self Interest and the Corporate
Responsibility
to Respect Human Rights: A Critical Look at the Justificatory
Foundations of the
Proposed UN Human Rights Framework," Business Ethics
Quarterly 22(1): 9-36.
Dhir, Aaron. 2012. "Shareholder Engagement in the Embedded
Business Corporation:
Investment Activism, Human Rights, and TWAIL Discourse,"
Business Ethics
Quarterly 22(1): 99-llS.
Donaldson, T. 1991. The Ethics of International Business
(Oxford: Oxford University
Press).
Hillmanns, Carolin F. 2003. "UN Norms on the Responsibilities
of Transnational
Corporations and Other Business Enterprises with Regard to
Human Rights,"
German Law Joumal 4( 10) : 1065-80.

Kobrin, Stephen, J. 2009. "Private Political Authority and
Public Responsibility:
Transnational Polities, Transnational Firms, and Human
Rights," Business Ethics
Quarterly 19(3): 349-74.
Lee, Daniel E., and Elizabeth J. Lee. 2010. Human Rights and
the Ethics of Globalization
(Cambridge: Cambridge University Press).
Lloyd, Denis. 1991. The Idea of Law (Harmondsworth: Penguin
Books).
Muchlinski, Peter. 2009. "The Provision of Private Law
Remedies against Multinational
Enterprises: A Comparative Law Perspective," Journal of
Comparative Law 4(2):
148-70.
2012. "Implementing the New UN Corporate Human Rights
Framework:
Implications for Corporate Law, Govemance, and Regulation,"
Business Ethics
Quarterly 22(1): 145-77.
Ruggie, J. G. 2006. Promotion and Protection of Human Rights:
Interim Report of the
Special Representative of the Secretary-General on the Issue of
Human Rights
and Transnational Corporations and Other Business Enterprises.
UN Doc E/

CN.4/2006/97.
2007. Business and Human Rights: Mapping International
Standards of
Responsibility and Accountability for Corporate Acts. UN Doc
A/HRC/4/035.
2008. Protect, Respect and Remedy: A Framework for Business
and Human
Rights. UN Doc A/HRC/8/5.
2010. Business andHumanRights: Further Steps towardthe
Operationalization
of the "Protect, Respect and Remedy" Framework. UN Doc.
A/HRC/14/27.
2011. Guiding Principles on Business and Human Rights:
Implementing
the United Nations "Protect, Respect and Remedy" Framework.
UN Doc. A/
HRC/17/31.
Strudler, Alan. 2008. "Confucian Skepticism about Workplace
Rights," Business Fthics
Quarterly 18(1): 67-83.
United Nations. 1984. "Human Rights Principles and
Responsibilities for Transnational
Corporations and Other Business Enterprises. UN Doc.
E/1990/94.
Wettstein, Florian. 2012. "Silence as Complicity: Elements of a
Corporate Duty to Speak
Out against the Violation of Human Rights," Business Ethics
Quartery 22(1): 37-61.

Wood, Stepan. 2012. "The Case for Leverage-Based Corporate
Human Rights
Responsibility," Business Ethics Quarterly 22(1): 63-98.
Copyright of Business Ethics Quarterly is the property of
Philosophy Documentation Center and its content
may not be copied or emailed to multiple sites or posted to a
listserv without the copyright holder's express
written permission. However, users may print, download, or
email articles for individual use.

12 point ----Times New Roman---- MLA FORMAT ---use sources att.docx

More Related Content

More from moggdede (20)

Recently uploaded (20)

12 point ----Times New Roman---- MLA FORMAT ---use sources att.docx