The imagining, proclamation and eventual codification of international human rights law rank among the most significant accomplishments in international relations of the post-1945 era. Although the concept of rights on the domestic level had been evolving for centuries, the notion that all people in the world possessed certain rights—that their own government is obliged to protect—was nothing short of revolutionary.
The intrusion of human rights into the heretofore sacrosanct realm of national sovereignty upended 350 years during which sovereignty was understood primarily as a shield against outside influence. While sovereignty was never absolute, its limits were few. One of the only limits related to rights was the customary international law norm that required states to protect aliens within their jurisdiction, although this protection stemmed from respect for the sovereignty of the aliens’ state rather than from any broader concern for the rights of all individuals within a state’s territory. Other limits reflected the ‘sovereign equality’ of states (for example, state responsibility for acts within its territory that might harm another state) or the perceived necessities of conducting international relations (for example, immunity of diplomats, freedom of the high seas).
Human rights, on the other hand, are not in their essence ‘international’. Their violation affects other states only indirectly, and the idea that how a state treats its own citizens within its own jurisdiction is a legitimate matter for international concern was truly novel. Illustrative of this approach is the long struggle to outlaw slavery, which initially focused on the transnational slave trade. Abolitionist campaigns within countries began to bear fruit in the late eighteenth and early nineteenth centuries, but the first international treaty that banned slavery itself was adopted only in 1926. 1
The origins and growth of international human rights norms and what became the international human rights movement have been analysed by a number of scholars, and it is not particularly relevant to a contemporary understanding of the content of human rights to decide whether the meaningful internationalization of rights began in the 1930s, 1940s or 1970s. 2 Formally, however, identifying as one of the purposes of the United Nations (UN) ‘promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’ was surely a landmark. 3 The language of the Charter of the UN left implementation of this goal primarily in the hands of states themselves, but it made clear the fact that human rights were no longer solely within the domestic jurisdiction of states.
While some contemporary states continue to complain that international human rights norms violate traditional norms of state sovereignty, 4 sovereignty today no longer permits states to act any way they wish with respect to the treatment of individuals within their jurisdiction. This fact is reflected not only in hortatory declarations and diplomatic speeches but also in practice. The UN and many other multilateral international organizations include the promotion of human rights within their mandates, and regional human rights courts exist in Europe, Africa and the Western Hemisphere. Every country in the world has ratified at least one of the nine global treaties adopted under the auspices of the UN; as of mid-2015, more than 160 states had ratified the two core conventions on civil and political rights and economic, social and cultural rights, respectively; 5 177 states had ratified the Convention on the Elimination of All Forms of Racial Discrimination; 189 had ratified the Convention on the Elimination of All Forms of Discrimination against Women; and 196 states had ratified the Convention on the Rights of the Child. 6
In 2006, the UN Human Rights Council (HRC) adopted a new procedure, the Universal Periodic Review (UPR), under which the human rights situation in every member state of the UN is reviewed on a regular basis, irrespective of which—if any—treaties the state has ratified. The UPR was adopted by consensus, and all 192 UN members submitted reports on their domestic human rights practices and participated in the initial four-year review process.
Whatever quibbles or questions remain about the legal impact of human rights treaties, the relevance of ‘soft law’ principles and declarations or the lack of sufficiently robust implementation or compliance mechanisms, the argument that human rights are purely a domestic matter is no longer sustainable.
A. Human Rights as Law
‘Human rights’ as a phrase is extraordinarily broad and can encompass many understandings of what ‘rights’ are. As implied by the first sentence of this article, however, the contemporary content of human rights is defined most clearly and most powerfully as law. The relationship of law to other regulatory or aspirational frameworks—politics, ideology, religion, social justice, equality or fairness, to name only a few—is a recurring theme of the present work. The underlying assumption is that the status of human rights as law needs to be protected and that the distinction between legal obligations and other obligations of a moral or political nature needs to be maintained. ‘Human rights’ may mean all things to all people, but ‘international human rights law’ cannot.
This understanding of human rights as denoting international human rights law is necessarily narrow; it does not encompass every right that someone or some group seeks to assert. As discussed below in the section on the flexibility inherent in human rights norms, this narrowness should not be confused with uniformity in interpretation and application. Law does, however, provide a structural context in which human rights can be best understood in today’s world. Law also provides (i) the best evidence of the content of human rights; and (ii) the best evidence of the essential universality of human rights commitments that states have actually undertaken. As aptly put by Allen Buchanan, ‘Human rights law, not any philosophical or “folk” theory of moral human rights, is the authoritative lingua franca of modern human rights practice.’ 7
This approach does not seek to minimize the role of human rights understood more broadly as an aspirational moral framework that has inspired activists and ordinary people around the world. It also recognizes the political value that many governments have found in human rights, whether it is to promote them or to hold them up as foils for nationalist rhetoric that rejects any influence by foreigners on the sacred homeland. However, understanding the role of human rights as law is essential if one hopes to clarify the other roles that human rights may play, as ideology, utopia or political weapon.
Law can change, and international human rights law is no exception. Neither the Universal Declaration of Human Rights nor any other human rights instrument was handed down on golden tablets or otherwise revealed through divine intervention. The continuing evolution of international human rights law is demonstrated by the adoption of numerous treaties at the global and regional levels that expand, nuance or occasionally limit the broad norms articulated in the UN Charter or by the 1948 Universal Declaration of Human Rights. New norms await further elaboration and agreement, and interpretations of existing norms may shift—just as many domestic statutes and constitutions acquire new meaning in order to respond to new situations and new problems. We should welcome this process, although proclaiming too many new norms without ensuring that meaningful consensus exists within all regions of the world can be problematic, as discussed further in the section on new rights.
The arguments that follow are pragmatic rather than philosophical, realist rather than visionary. They assume that the constraints of the current international system of states will continue to exist for the foreseeable future and that neither a world government nor a new ‘super’ or ‘hyper’ state will have either the capacity or the legitimacy to mould the world into any particularly orderly shape.
The arguments also are premised on the proposition that international human rights law has had a positive influence on the situation of individuals across the globe and that maintenance and better implementation of that law should be encouraged. 8 It does not presume that either human rights or law are the primary agents of change within or across societies, but it does argue that human rights norms can facilitate the development and influence of other socio-economic–political–moral change agents in ways that are more likely to respond to the needs of most people in the world.
B. Today’s Problem
Human rights are on the verge of becoming a victim of their own success. Unless there is a conscious attempt to return to the principles of consensus and universality, the increasingly strident calls from European and other ‘Western’ human rights activists for adherence to the contemporary liberal European construct of society is likely to create a backlash in the rest of the world. This tendency is concurrently exacerbated by activists who see an expansive concept of ‘rights’ as the primary means to effect domestic social and political change, as well as by governments that wish to burden human rights with broader geopolitical initiatives. The result will be, ironically, to strengthen anti-human rights governments and others who have challenged the universal application of human rights by privileging cultural relativism over globally shared values.
A few recent examples may be useful. Mainstream academics have called for the extension of human rights obligations not only to international organizations, but also to corporations, other non-state actors and even individuals. 9 An analysis of potential conflicts between human rights and other international norms, such as those set forth in trade or bilateral investment treaties, holds that the ‘constitutionalisation of the international human rights regime’ in South America has led to state obligations to, inter alia ,
adopt affirmative actions, preventative measures and adequate and transformational compensation measures to address widespread situations of systematic patterns that produce or reproduce inequality among citizens[,] … produce public information … [And] prevent undue media concentration. 10
A court in Mexico declared that the killing of dozens of protesters by soldiers at a Mexico City student demonstration in 1968 was ‘genocide’, a stunning expansion of the ultimate international crime far beyond what was originally envisioned. 11 Amnesty International, one of the oldest and most well-respected international human rights non-governmental organizations (NGO), has promoted drafting a treaty to control the arms trade 12 and called for the ‘full decriminalization of all aspects of consensual sex work’. 13 After losing its bid to host the 2000 Games, a Chinese government official claimed that it was a ‘human right of the Chinese people’ to host the Olympics in the future. 14 The UN HRC has appointed individual experts to consider the relationship between human rights and, for example, transnational corporations, dumping of toxic waste, the use of mercenaries, extreme poverty, the effects of economic reform policies and foreign debt and ‘international solidarity’. 15
Some of these initiatives or claims are morally defensible, indeed admirable, and calling for greater social equity or punishing soldiers who kill protesters is laudable and necessary. However, it stretches the imagination to believe that these issues were foremost (or even present) when the Universal Declaration of Human Rights was adopted by the UN General Assembly in 1948. That instrument, although not in and of itself legally binding, remains the most widely accepted articulation of human rights, but the popularity of the term ‘human rights’ as a mantra for change has led to a significant expansion of the rights proclaimed in 1948. The consequences or ‘blowback’ of such an expansion may be to set back an entire movement that is based on the proposition that all human beings enjoy certain rights simply because of their status as humans.
Of course, interpretations of international norms change over time, and we should welcome the fact that we have a much fuller understanding of human rights than we did in 1948. Just as ‘equal protection’ in the USA was understood to permit racial segregation until the Supreme Court issued its famous 1954 judgment in Brown v Board of Education , 16 international human rights bodies today are unlikely to tolerate inequities and ill-treatment that were common a half-century ago. Calls for restraint in formulating new rights should not serve as cover to justify attempts to turn the clock back to an earlier time, when women, children, minorities and other disempowered groups ‘knew their place’.
4. CRIMINAL PUNISHMENT, COERCION AND FORCE
A. Confusing Human Rights Violations with International Crimes
The prevalent confusion between the responsibility of a state to protect human rights and the culpability of an individual who commits a crime is paradigmatic of attempts to infuse human rights into unrelated concepts, usually to the detriment of both. For example, it is common to find references to ‘human rights crimes’ in the context of violent conflicts, without any explanation of what the adjectival characterization of a crime as a ‘human rights’ crime adds to our understanding of either criminal justice or international law. A similar approach may be found in discussions of transitional justice or post-regime-change situations, when the issue of punishing past ‘human rights violations’ arises. 17
International law has imposed obligations on individuals for centuries, and such criminal liability predates concern with international human rights and the obligations of governments to those within their jurisdiction. It is difficult to see, for example, what punishing the pirate, hijacker, drug trafficker, terrorist, money launderer or polluter has to do with human rights. Of course, all involve harm to people or property, combined with widespread international agreement that punishing such acts need not be restricted by the normal limitations of state sovereignty. (Most states exercise jurisdiction over crimes only if the crime occurs within that state’s territory or if either the victim or perpetrator is a citizen of the state.) On the other hand, most harms are neither international crimes nor human rights violations, even if they may give rise to personal civil or criminal liability at the domestic level.
The rejoinder of many human rights activists is that only certain kinds of crimes are human rights crimes, that is, those that involve either widespread killing or particularly heinous acts. The most common examples given are genocide, war crimes, crimes against humanity and torture. However, the body of law concerning the first three of these crimes arose independently of and prior to the articulation of the human rights obligations of governments. We may bemoan the lack of enforcement, but the international community has attempted to define and punish war crimes at least since the nineteenth century, including what might now be termed ‘human rights’ crimes such as rape and torture, in addition to crimes of mistreating prisoners of war or attacking civilian targets.
The primary concern of human rights advocates, particularly in Latin America, has been to overcome the impunity of government officials who escape punishment for the crimes they committed during their reign. This view crystallized around the case of General Pinochet and his henchman in Chile, who granted themselves amnesties before leaving office after a murderous 17 years in power; a similar situation obtained in Argentina and elsewhere in Latin America in the 1970s and 1980s. 18 Local human rights activists and the relatives of victims were in the forefront of campaigns to reverse these amnesties, and combatting impunity became a new ‘human rights’ mantra. The human rights ‘hook’ was that human rights norms require the prevention of future abuses and that victims have the right to an appropriate remedy for violations that occurred in the past. 19
The conflation of criminal punishment with human rights violations deepened when UN negotiators began in 1999 to refuse to approve amnesty clauses in peace agreements that immunized perpetrators of internationally recognized war crimes and crimes against humanity. 20 This stance led UN Secretary-General Ban Ki Moon in July 2007 to threaten to boycott cooperation with the Indonesia-East Timor Commission of Truth and Friendship, unless the commission ruled out recommending amnesties for ‘human rights’ crimes. 21 Also controversial has been dealing with the situation in Northern Uganda, where leaders of the rebel Lord’s Resistance Army have been indicted by the International Criminal Court (ICC), despite objections from many of the victims of their crimes, who would prefer to seek peace through reconciliation rather than retribution. 22
This categorical rejection of impunity for international crimes—as well as human rights violations—is heralded by many as a universally applicable norm, although such a position is unsupported by state practice and certainly does not constitute a norm of customary international law. 23 For example, the Belfast Guidelines on Amnesties and Accountability, adopted by a group of experts in 2013, note that
[w]ithin international human rights law, there are differences in the approach of the regional human rights courts on whether there is an obligation to prosecute gross violations of human rights or whether it is sufficient that states investigate such violations and provide remedies for those affected. Amnesties enacted in different regions of the world may be subject to different standards.
The Principles do refer to human rights, but they clarify that ‘[g]ross violations of human rights is used here to denote acts that constitute serious crimes under national or international law and, if committed by a government, would violate the state’s human rights obligations.’ 24
Rather than being based on illusory norms of international law, decisions regarding amnesties are better left to domestic authorities (assuming that the alleged criminals do not adopt ‘auto-amnesties’ simply to protect themselves), who are better positioned to determine whether punishment, forgiveness or something in between is more likely to lead to a more stable, rights-respecting polity in the future. What is ultimately required is the much more difficult and time-consuming task of helping to change the behaviour of governments, and demands to put all human rights violators in prison may or may not contribute to this goal. 25
Since the 1990s, international crime and punishment have spawned hundreds of international jobs and cost billions of dollars, including the aborted trial of Slobodan Milosevic and the successful prosecution of many who committed crimes in former Yugoslavia and Rwanda. A permanent international criminal court, based in The Hague, was created in 2000, and 123 countries had submitted to its jurisdiction as of mid-2015. Its jurisdiction extends not to ‘human rights’ violations but to the three traditional categories of international crimes already mentioned, namely genocide, war crimes and crimes against humanity (a fourth crime, that of aggression, was added in 2010, although it had been accepted by only 23 states as of mid-2015). In the Rome Statute itself, human rights are mentioned only in the context of ensuring that the court interprets applicable law in a non-discriminatory manner and consistently with ‘internationally recognized human rights’ (Article 21(3)); prohibiting, in most instances, evidence obtained by means that violate human rights norms (Article 69(7)); and, oddly, as being an area of competence relevant to the selection of judges (Article 36(3)(b)(ii)).
Another goal of this ‘new direction in human rights advocacy’ was described by the International Center for Transitional Justice when it was founded in 2001 as ‘helping societies to heal by accounting for and addressing past crimes after a period of repressive rule or armed conflict’. 26 Without entering fully into the ‘peace versus justice’ debate, the point is simply to reiterate that ‘human rights violations’ or even ‘serious’ or ‘gross’ violations are often not crimes and are attributable to governments, not to individuals. No one believes that international law mandates criminal punishment for every government official who authorizes or tolerates religious or gender discrimination, denies free expression, or suppresses trade union activity, for example, although such acts certainly constitute serious violations of human rights and may also constitute crimes under domestic law.
The UN has not been immune to this conflation of human rights norms with criminal justice. For example, it may not be coincidence that the three most recent UN High Commissioners for Human Rights had significant experience with international criminal tribunals prior to their appointment; none had served on an international human rights body. 27 High Commissioner Navi Pillay offered to help Haiti prosecute former dictator Jean-Claude Duvalier 28 and warned Nepal against granting amnesties to those who committed ‘serious human rights violations’ during the conflict in that country. 29 The UN HRC has created commissions of inquiry into the armed conflict in Syria 30 and the June 2014 conflict in Gaza, 31 and it ordered an investigation of crimes and human rights violations in Sri Lanka that occurred during and after the end of that country’s civil war in 2009. 32 The mandates of all three refer more often to crimes against humanity and criminal prosecution than they do to human rights violations. 33 The Council also created a $1.2 million fact-finding commission to investigate alleged crimes committed by the Islamic State in Iraq 34 and recently requested the High Commissioner to document gross human rights abuses and violations of international humanitarian law by Boko Haram. 35 On the government side, the US Department of Homeland Security created a ‘Human Rights Violators and War Crimes Unit’ as part of its US immigration and customs authorities, in order to prevent the entry into the USA of ‘foreign war crimes suspects, persecutors and human rights abusers’; one of its missions is to ‘identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe’. 36
Of particular concern is the increasing focus on international crimes and accountability on the part of the HRC and OHCHR, which are ill-suited and often unqualified to determine whether or not criminal violations of international humanitarian law have occurred. 37 In addition, there is very little that these bodies can do to influence situations of widespread violence and armed conflict, which are certainly not being ignored by other UN actors, states or the media. Appeals to ‘human rights’ in such conflicts are unlikely to yield much fruit, which risks diminishing the value or effectiveness of human rights in the minds of many.
B. Human Rights Hawks
Human rights can affect the use of force in two primary ways. First, severe or mass human rights violations may be utilized to justify the use of force by one state or coalition of states against another. Such a justification would either modify or serve as an exception to the prohibition of the threat or use of force ‘against the territorial integrity or political independence of any state’ contained in Article 2(4) of the UN Charter. 38 Secondly, the simultaneous application of international human rights law and international humanitarian law (IHL, also known as the law of war) in armed conflicts may modify one or the other body of law. The first issue involves jus ad bellum , or the legality of the use of force. The second implicates jus in bello , or the modalities of using force once hostilities have begun.
(i) Jus ad bellum
In his book, Freedom on Fire: Human Rights Wars and America’s Response , John Shattuck proudly proclaims, ‘I am a human rights hawk.’ 39 A well-respected human rights lawyer and activist for decades, Shattuck served as Assistant Secretary for Democracy, Human Rights and Labor under US President Bill Clinton in the challenging years of 1993–1998. Citing the rise in chaos and repression that followed the end of the Cold War, along with the mass killings epitomized by the conflicts in Bosnia and Herzegovina, Haiti, Rwanda and Kosovo, he argues that international security must be redefined ‘to include the global protection of human rights, as we face an ever increasing threat of instability and terror emanating from failed states’. 40 In fact, the ‘human rights wars’ of which Shattuck speaks are more often cases of genocide or massive crimes against humanity, and his use of the much more expansive notion of ‘human rights’ wars is unfortunate; the confusion is increased by his definition of humanitarian intervention as ‘a combined military and civilian effort by a coalition of countries to protect a civilian population from severe human rights abuse at the hands of their own government’ (emphasis added). 41 While Shattuck supports multilateral action, Ruti Teitel observes that the ‘drumbeat for humanitarian intervention’ after Bosnia and Rwanda also was supported by ‘human rights activists [who] were unabashed unilateralists, arguing for humanitarian intervention with or without procedural authorization or multilateral political backing’. 42 Michael Glennon notes the ‘veritable cottage industry [that] has sprung up [after the 1999 NATO bombing in Kosovo] among manufacturers of new sets of rules concerning humanitarian intervention’. 43
Another well-known hawk is Anne-Marie Slaughter, a supporter of the use of force in Kosovo in 1999, Iraq in 2003, Libya in 2011 and former Director of Policy Planning in the US Department of State in 2009–2011. Complaining that international law has been too slow to legalize humanitarian intervention, she, too, goes well beyond genocide and crimes against humanity when she defines an intervention as ‘legitimate’ (not ‘legal’) ‘when it responds to a gross and systematic violation of human rights that offends our common humanity’.’ 44 Noting the danger of ‘aggression masquerading as humanitarian intervention’, she argues that ‘it is necessary to keep the requirement of collective authorization’ for the use of force, on the assumption that, once we ‘spell out the global conditions for legitimacy over legality, … the law will catch up with the reality of state practice’. 45 Like so many other theoretical justifications for force, however, the devil is in the details: despite Slaughter’s recognition that ‘[i]t is impossible to strike Syria legally,’ she advocates US attacks on Syria and has urged US President Obama
to demonstrate that he can order the offensive use of force in circumstances other than secret drone attacks or covert operations …. To lead effectively, in both the national and the global interest, the US must demonstrate its readiness to shoulder the full responsibilities of power. 46
(ii) The responsibility to protect
For over a decade, the debate over humanitarian or human rights intervention has largely evolved in the context of the doctrine of the ‘responsibility to protect’ (R2P). Unfortunately, the vagueness, hyperbole and neo-colonial undertones of R2P may have the consequence of making it more, not less, difficult to reach consensus on criteria for humanitarian intervention in the future. As R2P continues to evolve within the labyrinthine corridors of the UN, what little potential the concept might have had as a catalyst for action is diminishing rather than increasing. 47 Finally, it may make it even more difficult to promote and protect human rights, properly understood, if a clear distinction is not maintained between the moral-political aspirations of R2P and the legally binding norms of international human rights law.
The genesis of R2P lies in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), which was created a year earlier by the Canadian government to consider how the international community ‘should respond in the face of massive violations of human rights and humanitarian law’. 48 The commission argued that substituting the concept of the ‘responsibility to protect’ for that of ‘humanitarian intervention’ better reflected the desired focus on victims, rather than the intervener, and was more likely to be acceptable to states.
While the primary public arguments for the invasion of Iraq in 2003 by the USA and its ‘coalition of the willing’ (which included such European human rights stalwarts as the UK, Netherlands, Spain, Portugal, Italy and Denmark) initially rested on illusory claims of weapons of mass destruction and support for terrorism, the case for invasion also included Saddam Hussein’s admittedly heinous violations of human rights and the need to establish democracy by overthrowing the regime. 49 Whatever the true motives for invading Iraq, the mantra that emanated from Washington during the George W. Bush administration, at least, was that the USA should assist in replacing dictatorships with democracy—implicitly, anywhere it can. With democracy would come tolerance and open societies, although the path to achieve these goals is strewn in Iraq with thousands of dead Americans and hundreds of thousands of dead Iraqis. 50 The overuse of ‘democracy’ and ‘freedom’ by President Bush sounded suspiciously like ‘human rights’ to many beyond Washington, DC, although the Bush administration’s understanding of the latter term was myopic, at best.
The Obama administration has not been immune to resolving human rights dilemmas by force, although it does seem more reluctant to do so. A 2014 opinion editorial article went so far as to conclude that ‘some of the most outspoken warmongers in Washington are self-proclaimed human rights advocates’, citing arguments for the use of US military power ‘to capture a warlord in Uganda, impose order in the Ivory Coast, crush rebels in South Sudan, and locate kidnap victims in Nigeria’. 51
In 2005, the ‘responsibility to protect’ was limited by the UN General Assembly to the responsibility of individual states to protect their populations from the four international crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. 52 The international community’s responsibility was limited to ‘appropriate diplomatic, humanitarian and other peaceful means’, unless coercive measures were authorized by the Security Council. 53
Despite the circumspect manner in which the General Assembly delineated R2P, a 2009 report by the UN Secretary-General on R2P curiously added the phrase ‘and violations’ to most mentions of the four crimes, apparently as a means of tying the 2005 Summit Outcome’s version of the responsibility to protect against certain international crimes to the broader responsibility of states to respect, ensure and recognize international human rights. 54
The only authorization by the UN Security Council of the use of force by non-UN forces occurred to protect civilians in Libya in 2011 and was initially hailed as the high point of R2P. The Council authorized ‘all necessary measures … to protect civilians and civilian populated areas under threat of attack’, based on Muammar Qaddafi’s threats against rebels in the city of Benghazi and with the support of the Arab League. 55 However, the subsequent de facto expansion of that mandate by US and European countries to legitimize the overthrow of Qaddafi and their support for the insurgents robbed R2P of much of its precedential value. 56 The subsequent civil war, deterioration of security, and resulting anarchy in Libya tarnished the concept of R2P further, and Libya should be remembered as a warning about unintended—perhaps even inevitable—consequences of using force, even to save lives. 57
By linking the new concept of R2P to the widely accepted principle of state responsibility for human rights, the Secretary-General and others risk undermining the latter for no apparent reason. Fortunately, the platitudes that infused the Secretary-General’s 2009 report have not been expanded or given more specific content in subsequent iterations of R2P, although the linkage of R2P with ‘gross’ or ‘severe’ or ‘systematic’ human rights violations continues. Implementing human rights is difficult enough without the baggage of the responsibility to protect, and linking the concept of R2P with the law of human rights is unlikely to help either gain adherents. 58
(iii) Jus in bello
It is clear that human rights law applies in time of armed conflict, alongside international humanitarian law, a position upheld by the International Court of Justice in several recent judgments: 59
[T]he Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the [International Covenant on Civil and Political Rights]. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law …. [T]he Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis , international humanitarian law. 60
These interpretations have been reinforced by the European Court of Human Rights, which has slowly expanded its extraterritorial jurisdiction over state actions outside its own territory. 61 The recent case of Hassan v United Kingdom alleged violations of the applicant’s right to life, the prohibition against torture and the legality of his detention by British forces in Iraq in 2003. 62 The Court first followed its precedents in finding that, during his detention, Hassan was within the jurisdiction of the UK for the purposes of the European Convention on Human Rights. It then rejected the British argument that only IHL and not the human rights norms of the European Convention applied ‘in the active hostilities phase of an international armed conflict, where the agents of the Contracting State are operating in territory of which they are not the occupying power’. 63 Consistent with the opinions of the International Court of Justice referenced above, the Court concluded that, given
the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of [article 5 of the Convention] … should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. 64
Finding that the detention was not arbitrary and was consistent with IHL, the Court found no violation of the European Convention. 65
A final related issue is how the much the broader goals of ‘humanitarian’ or ‘human rights’ intervention (as opposed to a ‘normal’ armed conflict where military victory is the primary goal) may complicate existing norms of both international human rights law and international humanitarian law. In a recent article, Gabriella Blum identifies the crux of the problem.
Somewhat paradoxically, by making human rights violations within any single country a matter of international interest—and by deeming gross human rights violations a grave offence that implicate a duty to intervene on the part of the international community—human rights came to operate as both a limitation on war and a cause for war. They limited not only the targets and scope of deliberate harm in war, but also revived an earlier interest in the plight of individuals as a just cause for waging wars of ‘humanitarian interventions. 66
In ‘human rights wars’, to use John Shattuck’s phrase, structural changes, both political and economic, have become ‘necessary components of victory, not merely post-war missions’. 67 Structural changes mean not only stopping mass killing or creating more honest and functional government institutions, they also implicate ‘regular’ human rights. For example,
confiscation [of property] is allowed [under IHL] only for ‘military necessity’. And yet, once gender equality, aid, and reconstruction are made part of the goals of the war [in Afghanistan], no less so than chasing after Al Qaida operatives, it is unclear why confiscation of property for … [military necessity] should be allowed, while for … [the construction of a school for girls] it should not. Nor, for that matter, is it clear why that same goal of gender equality would not justify the use of armed force against those who are fighting against it ….[W]ith the extension of the war into the political and civilian realm, the principle of proportionality—if weighed against those interests—risks becoming meaningless. After all, how can one weigh how many lives the rights of women in Afghanistan are worth? 68
As Blum demonstrates, conflating human rights and international humanitarian law may not be such a good idea. Beyond the obvious concern of each body of laws to protect the rights of individuals, their purposes are quite different. While derogation or temporary suspension of rights may be justified in states of emergency, human rights law generally assumes that states exist in conditions of relative peace and that governments are capable of acting to effectively (if not perfectly) ensure rights. IHL, on the other hand, is predicated on the existence of an armed conflict, and its major concern is regulating how that conflict should be conducted. Blum’s not-so-rhetorical question is incapable of being answered by human rights law, and IHL is better at quantitative comparisons than qualitative moral judgements. We are left either with no law or the need to develop new law; the former situation would be disastrous, while the human rights hawks too often tend to ignore the latter in favour of rhetoric, 140-character tweets and YouTube video appeals.
(iv) Concluding remarks
As the final quotation suggests, it is difficult, perhaps impossible, to balance the worth of one life against another. It is just as difficult to predict whether a particular use of force will be ‘successful’ or not, and at what cost. 69 Not only political, but also technological considerations determine which countries will be targeted for armed intervention; millions died in the Democratic Republic of Congo and Sudan, while intervenors tried to save thousands in Kosovo and Libya. Even if an international consensus could be reached over the criteria for intervention—just the four crimes identified by the UN General Assembly or a lower threshold? Any decision to intervene will reflect national priorities, politics and capabilities, not only the extent of suffering of the victims.
Advocates of the responsibility to protect pretend that its adoption is an innovative limitation on national sovereignty, the sovereignty that ‘allows’ genocide and mass murder to be committed without consequence. However, this simplistic equation ignores another basic principle of international law that is held dear not only by criminals, but also by former colonies and less powerful states whose history has been one of too much intervention rather than too little, that is, the prohibition against the use of force that is one of the cornerstones of the UN. The history of the past several decades provides little support for the claim that loosening or legalizing the norms against armed force will mitigate disaster, but it is almost certain that government intervention based on ‘humanitarian’ or ‘R2P’ justifications will be used to hide much less laudable goals on the part of the intervenors.
Sovereignty has been limited by international human rights law for decades. The obligations accepted by states under human rights treaties are legally binding, not just political statements mouthed by the UN General Assembly. That they do not include provisions that would authorize invasion or bombings is not a weakness but a recognition of the fact that implementation of human rights norms is a complex, often long-term, process that cannot be accomplished by outsiders. Even if violations within a state are serious—for example, widespread discrimination, regular use of torture, unfair trials and elections, a preference for elite enrichment rather than fulfilment of socio-economic rights—the answer cannot be found in the neo-colonial imposition at the point of a gun of others’ ideals of rule of law or development.
Using the protection of human rights as an excuse for bombs and forced regime change is almost never a good idea. Neither the international community nor ‘coalitions of the willing’ have been particularly successful in (re)constructing states in accord with human rights principles.
A properly defined international responsibility to protect—directed towards preventing widespread loss of life, whatever the cause—could be a meaningful advance in the humanization of international law. However, calls for the use of force in order to ‘do something’ in the face of widespread human rights abuses raise unrealistic expectations and may deter adoption of less drastic actions that will be slow and frustrating but that may, in the end, be more fruitful and sustainable.
5. MARGINALIZING GOVERNMENT
Just as it may be easier to punish individuals than to change governments, human rights activists often find it easier to go after softer, more readily identifiable, targets, rather than governments. Transnational or multinational corporations (TNCs) have long been accused of either conspiring with governments to violate human rights for economic gain or simply ignoring governments and infringing ‘rights’ directly. Oddly, they are rarely given credit for contributing to the fulfilment of economic rights when development goes well, but that lack of balance need not detain us here.
A TNC may collaborate with a repressive government in many ways, and there is no doubt that many TNCs are willing to do so. 70 When the collaboration amounts to complicity or aiding and abetting an international crime, then the individuals involved (not the company) may be subject to international criminal law.
The UN attempted on a number of occasions to address corporate responsibility for human rights, culminating in adoption of the Guiding Principles on Business and Human Rights by the HRC in 2011. Prior to that initiative, the General Assembly spent many years in the 1970s and 1980s discussing a Code of Conduct for Transnational Corporations, an initiative that eventually foundered on north–south divisions, continuing disagreements over the New International Economic Order that was proclaimed by the UN General Assembly in 1974, 71 and a growing desire on the part of developing countries to encourage rather than discourage foreign investment. 72
The most rights-oriented attempt to articulate the relationship between business and human rights were the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted by the UN then Sub-Commission on the Promotion and Protection of Human Rights in 2003. 73 According to their primary author, US law professor and member of the Sub-Commission, David Weissbrodt, the norms
applied human rights law under ratified conventions to the activities of [businesses]. Moreover, the language of the document emphasized binding responsibilities through the use of the term ‘shall’ rather than ‘should’ and the draft norms included measures for implementation. 74
While many NGOs welcomed the norms, they received a chilly reception from the business community and the Sub-Commission’s parent body, the Commission on Human Rights. Nonetheless, it was not politically feasible for the Commission simply to drop the issue, and it subsequently requested the Secretary-General to appoint a special representative on human rights and business, whose work over the next several years resulted in adoption by the UN HRC (which succeeded the Commission in 2006) of the Guiding Principles on Business and Human Rights. 75
The Principles were drafted by the special representative, US Professor John Ruggie, after extensive research and a series of consultations with governments, businesses, non-governmental organisations and other stakeholders. The Principles are organized to implement the ‘protect, respect and remedy’ framework approved by the Council in 2010. 76 The special representative’s introduction to the principles states that their ‘normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices … [and] integrating them within a single, logically coherent and comprehensive template’. 77 The three pillars of the Principles are
the State duty to protect against human rights abuses by third parties, including business … ; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial (emphasis added). 78
The term ‘responsibility’ to respect [re businesses], rather than ‘duty’, is meant to indicate that respecting rights is not an obligation that current international human rights law generally imposes directly on companies …. [although it reflects] a standard of expected conduct acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility (emphasis added). 79
A Working Group of the Council created in 2011 now monitors compliance with the Principles.
The Guiding Principles look much like what one would expect from a decent set of guidelines articulating corporate social responsibility. As noted above, they do not purport to extend the legal obligation to ensure human rights to business; for this reason, many NGOs were disappointed. At the same time, however, they have reinforced social and political pressures on business to pay attention—‘due diligence’—to human rights norms, and the principles themselves have been widely supported by the business community.
In 2014, the HRC decided to create an open-ended intergovernmental working group ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business entities’. 80 The first meeting of this group, which was ‘to collect inputs … on possible principles, scope and elements of such an international legally binding instrument’, 81 was in July 2015, and it remains to be seen whether this initiative will bear fruit in any meaningful way.
In the USA, a more direct means of attempting to hold corporations accountable for harm that they cause was ‘discovered’ when, in 1979, a US Court of Appeals was called upon to interpret the 1789 Alien Tort Claims Act (ATCA). ATCA grants original jurisdiction to federal district courts over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. 82 The Court in Filartiga held that this jurisdiction could be exercised over a Paraguayan national and a Paraguayan victim (both resident in the USA at the time) for torture that had occurred in Paraguay. 83
This set the stage for dozens of cases filed under ATCA against both individuals and corporations for torts committed outside the USA (any tort committed within the USA would be actionable under domestic tort law), as long as they allegedly violated international law. The US Supreme Court subsequently affirmed that an ATCA suit is permissible so long as the alleged violation of the law of nations (today known as customary international law) is widely accepted ‘and defined with a specificity comparable to the features of the eighteenth century paradigms we have recognized’ (piracy, violations of safe conducts and infringement of the rights of ambassadors). 84 However, a subsequent Supreme Court decision in 2013 narrowed the scope of ATCA further, by holding that the statute does not have extra-territorial application. 85 It noted, in passing, that there was ‘no indication that the ATS [ATCA] was passed to make the United States a uniquely hospitable forum for the enforcement of international norms’. 86
While the responsibility of the foreign government is implicit in ATCA suits, even a successful case does not directly require the offending government to do anything. In addition, shifting the focus to corporations may make it easier for the government itself to shift blame for the harm. Further, the prospect of using corporations to control governments rather than the reverse raises serious concerns, and attempts to impose human rights obligations directly on companies (whether foreign or domestic) may empower just those entities—corporations—that are the least accountable and transparent of all. 87
Many other non-state actors—criminals, terrorists, armed opposition groups beyond the control of governments, intergovernmental organizations, religious groups and others—harm individuals. The issue is not whether ways should be found to hold such entities responsible for the harm that they cause, whether through criminal sanctions, civil sanctions, or both, but whether it is useful to characterize such acts as ‘human rights violations’. One of the strongest arguments for extending ‘human rights’ obligations to non-state actors has been made by Andrew Clapham, who would extend human rights to the UN and other international organizations, corporations, non-state actors in times of armed conflict 88 and even individuals. 89 While Clapham makes a strong case for why such entities should care about ‘human rights’ broadly construed, the ‘obligations’ he proposes most often fall within the scope of moral and political obligations, rather than legal ones. 90
Given the limits on international enforcement mechanisms and the ultimate responsibility of states to control activities within their jurisdiction, it would seem better in the long run to insist that governments live up to their obligations to prohibit and punish certain conduct, rather than expecting international law to mandate corporate or other non-state conduct in human rights matters. Improving corporate social responsibility has already had an impact on the activities of many businesses, and there is no need to limit CSR to international ‘human rights’ norms nor to impose legal obligations to protect and ensure human rights on entities that have neither the capability nor the authority to do so.
Bringing pressure on all political and economic actors who may be able to contribute to making the world a better place is a worthy endeavour. Ensuring that individuals, organizations and businesses that harm others are held responsible for that harm is laudable. Much of such work is related to the economic, social, cultural, civil and political rights guaranteed by international human rights law, but it also reaches—and should reach—much further, addressing issues of morality, social justice, equity and use of national resources, in order to enable individuals and groups to achieve a better life.
Government’s job is to oversee a legal and political system that is fair, non-discriminatory, accountable and tolerant of minority views, so that these more far-reaching demands can be responsibly brought to bear on all organs of society and individuals within society. Both advocacy and the targets of advocacy enjoy rights that enable free choice on both sides; the outcome of advocacy is not guaranteed, except insofar as the human rights of all are ensured. However, it remains true that ‘[h]uman rights can meaningfully survive only within the context of the nation-state.’ 91
Struggles between government and civil society are inevitable—this is called democracy, which assumes that disagreement among different segments of society is better than enforcing an artificial consensus that only consolidates the power of those who already exercise it. Providing support, assistance, expertise and resources to government are an essential part of ensuring human rights, and we should not expect the private sector—whether business, religious or civil society actors—to accomplish or be held accountable for what is properly within the domain of government.
6. UNDERMINING OLD RIGHTS WITH NEW ONES
Both critics and some supporters of the human rights movement have expressed concern over what Eric Posner terms the ‘hypertrophy’ of rights: ‘The more human rights there are, and thus the greater variety of human interests that are protected, the more that the human rights system collapses from an undifferentiated welfare-ism in which all interests must be taken seriously for the sake of the public good.’ 92 Michael Ignatieff argues that ‘rights inflation – the tendency to define anything desirable as a right – ends up eroding the legitimacy of a defensible core of rights’. 93 Allen Buchanan similarly observes that ‘unbridled proliferation damages the very idea of international human rights by abandoning the notion of extraordinarily high priority norms in favour of an ever-expanding list of protected interests’. 94
Perfection was neither achieved with the adoption of the Universal Declaration in 1948, nor with the adoption of the two Covenants in 1966. There is a great deal of room for new rights, and there have been welcome advances in articulating new international norms for minorities and indigenous peoples, to name only two recent initiatives. In addition, the rights of certain vulnerable or historically marginalized groups—women, children, persons with disabilities—have been articulated in greater detail through the adoption of treaties that expanded on the Covenants’ focus on ‘everyone’.
These treaties adopted under the auspices of the UN 95 retain the ‘human’ in human rights; they do not address broad economic or political issues that are incapable of being rationally debated in the context of rights. However, the list of topics today addressed by the most important UN human rights body, the HRC, goes well beyond further explication or examination of adopted treaties and puts in sharper perspective the rights-inflation criticism. Beginning in 1990, the Council (then the Commission) has created working groups and individual experts (collectively known as ‘special procedures’) on an ad hoc basis to address a number of thematic issues. The early special procedures were concerned with physical security (e.g. disappearances, torture, arbitrary execution and detention) and civil rights (e.g. independence of judges and lawyers, freedom of religion and belief, racism). A number of socio-economic rights followed, including the rights to health, food, water, education and housing.
By 2015, the list of special procedures had grown to 41, 96 and the issues addressed include even narrower categories (for example, African descendants, persons with albinism, human rights defenders), as well as a number of what might be termed ‘rights and’ issues. The latter include special procedures on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes (created in 1995); extreme poverty and human rights (1998); effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights (2000); human rights and international solidarity (2005); the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (2005); human rights and transnational corporations and other business enterprises (2011); human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2012); the promotion of a democratic and equitable international order (2011); the promotion of truth, justice, reparation and guarantees of non-recurrence (2011); and the negative impact of unilateral coercive measures on the enjoyment of human rights (2014).
One of the most questionable—yet universally accepted—of the new human rights is set forth in the 1986 UN General Assembly Declaration on the Right to Development, 97 the first Article of which proclaims:
- The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
- The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
The conflation of development with ‘inalienable’ human rights is evidence of the increasing political character of human rights even in the 1980s, and it reflects the concern of developing countries (and the UN in general) to create a more equitable international economic order. While there is no doubt that a country’s level of development is relevant to its capacity to fulfil its human rights obligations, as explicitly recognized in the Covenant on Economic, Social and Cultural Rights (CESCR), it is difficult to reconcile the myriad aspects of international development with the primary focus of human rights on the relationship between individuals and their own government. Nonetheless, the rhetoric of the right to development enjoys broad support, and the resolution creating the position of UN High Commissioner for Human Rights specifically mandates that the High Commissioner shall ‘promote and protect the realization of the right to development’. 98 However, the right to development remains in the realm of ‘soft law’; it has not yet been proclaimed in any UN human rights treaty and certainly does not form part of customary international law.
As is evident from the partial list of special procedures above, many of the ‘human rights and’ issues are related to economic policy, trade and interstate relations. 99 Given the dire conditions in which billions of people in the world survive, it is not surprising that reducing or eradicating poverty has increasingly become linked to the concepts of human rights and human dignity. 100 In 2001, the Committee on Economic, Social and Cultural Rights bluntly declared that ‘poverty constitutes a denial of human rights’. 101 The following year, High Commissioner Mary Robinson stated, ‘Extreme poverty to me is the greatest denial of the exercise of human rights.’ 102 Louse Arbour, Robinson’s successor as High Commissioner, similarly called poverty ‘the gravest human rights challenge in the world’ and stated that ‘[t]he realization of human rights – including the fight against poverty – is a duty, not a mere aspiration.’ 103 Arbour’s successor, Navi Pillay, stated that poverty itself represents a complex of human rights violations’. 104 A panel of eminent human rights experts declared in 2011 that the
goal of eradicating poverty must be transformed from a merely voluntary development target into a legally binding human rights obligation of rich and poor countries and of other actors in the international community alike. 105
Many NGOs have joined in, with Amnesty International using ‘poverty is a human rights violation’ as a campaign slogan. 106
A useful publication by the New York-based Center for Economic and Social Rights suggests that poverty can be a cause of human rights violations, that it can be a consequence of human rights violations, or that it can be seen as, ‘in itself a negation of human dignity and therefore a denial of human rights’. 107 Among the challenges in identifying the existence of poverty per se as a violation of human rights are the range of rights involved, the range of responsible actors (both national and international), and the ‘overlapping and multiple determinants [of poverty] that cannot all be ascribed to state or non-state actors’. 108 The report persuasively concludes that ‘poverty is not in and of itself a violation. Rather the violation occurs when certain (usually government) actions or inaction breaches human rights obligations in a way that creates, exacerbates or perpetuates poverty’. 109
The issue is not whether poverty should be combatted but whether it is useful to identify it as a human rights violation along the lines of the simplistic Amnesty International slogan. For the reasons just mentioned, the answer is no, from both a pragmatic and legal perspective. Pragmatically, poverty-reduction policies involve much more than stopping ‘violations’, and focusing on human rights misleadingly implies that there are simple solutions to the complex problem of structural poverty. The ‘poverty-is-a-human-rights-violation’ slogan detracts from the attention that should be paid to a state’s concrete obligations with respect to economic and social rights (such as forced evictions, violations of labour rights, or the right to health) that may exacerbate or create poverty. Finally, calling on states to ‘end poverty’ without any consideration of competing rights or the complexities of macroeconomic policy (such as balancing a temporary increase in poverty against a good faith attempt to address longer term structural issues) misrepresents the totality of a state’s human rights obligations, implying that poverty always trumps everything else. While reminding states of their obligations to protect the human rights of all those within their jurisdiction is appropriate and welcome, when human rights experts offer gratuitous advice on economic policy, it simply supports the nefarious notion that ‘human rights’ offer the answer to all the world’s problems. 110
Another issue frequently linked to human rights is protection of the environment, ranging from holding companies responsible for oil spills and other environmental degradation to asserting an obligation on—someone? everyone?—to address climate change. Since most UN human rights treaties were drafted before environmental protection became a matter of international concern, there are few specific references to environmental matters, and environmental concerns are most often addressed as part of the rights to life or health.
More recently, regional instruments have referred explicitly to environmental issues. The African Charter on Human and Peoples’ Rights recognizes the right of ‘[a]ll peoples’ (not persons) to a ‘general satisfactory environment favourable to their development’. 111 The African Women’s Convention recognizes in greater detail the right of women ‘to live in a healthy and sustainable environment’. 112 The Additional Protocol to the American Convention on Human Rights on socio-economic and cultural rights provides:
- Everyone shall have the right to live in a healthy environment and to have access to basic public services.
- The States Parties shall promote the protection, preservation and improvement of the environment. 113
As a component of the right to an adequate standard of living, the 2012 ASEAN Human Rights Declaration guarantees the right to a ‘safe, clean and sustainable environment’; it also mentions the environment in the context of the right to development. 114
As discussed with respect to poverty, human rights violations may either cause or result from environmental degradation, but the right to a clean/healthy/sustainable environment per se is difficult to define. As one leading expert on both environmental issues and human rights has stated,
The substance of environmental rights involves evaluating ecological systems, determining the impacts that can be tolerated and what is needed to maintain and protect the natural base on which life depends. Environmental quality standards, precaution and principles of sustainability can establish the limits of environmental decision-making and continue to give specific content to environmental rights in law. 115
It is certainly possible to develop ‘environmental rights in law’, as evidenced by the number of environmental protection laws at both domestic and international levels. However, the obligations owed to humans—the subjects of human rights—are perhaps better articulated by continuing reference to existing rights, such as to health and life. 116 A human rights approach to the environment is likely to leave many legitimate environmental issues untouched (e.g. conservation of species, preservation of ‘natural’ beauty), while inserting the environment into human rights without relatively specific norms may lead to little more than platitudes. Calling for Royal Dutch Shell to ‘clean up its human rights mess in the Niger Delta’ 117 may be useful to an NGO looking for support and new sources of income, but confusing civil wrongs and damages with government obligations and peoples’ rights is unlikely to help.
Scores of countries suffer from varying degrees of official corruption, and the resulting damage to the economy, government accountability and rule of law can be enormous. High Commissioner, Navi Pillay, called corruption ‘an enormous obstacle to the realization of all human rights …. The impact of corruption on development and human rights is multifaceted; so too must be our response’. 118 At the same time, merely including a concept as broad as ‘corruption’ within international human rights law simply adds to the list of rights whose definition and implementation are extremely problematic. 119 Ensuring good governance is not the same as ensuring human rights, and the latter will never be sufficient to protect us from corrupt or ignorant government officials.
One human rights academic has stated that ‘it is legitimate to draw on philosophical arguments or activist agendas to claim any global social issue as a human right’, 120 but one should be careful what one wishes for. Nearing the end of her time as UN High Commissioner for Human Rights, Navi Pillay observed that ‘all [states] argued that she should avoid creating new rights. “That came up again and again”, she said’. 121 Examples of either new or extended rights that have been identified within the UN system include the special rapporteur in the field of cultural rights, who has raised concerns about the impact of commercial advertising ‘on cultural diversity and the right of people to choose their own ways of life’; 122 a special rapporteur on the right to health stated that the criminalization of sex work violates human rights by, inter alia, ‘creating barriers to access by sex workers to health services and legal remedies’; 123 and the special rapporteur on freedom of opinion and expression has called on governments ‘to develop effective policies to attain universal access to the Internet’ for their populations. 124 An OAS draft declaration on the rights of the elderly calls upon states to ‘take steps to ensure that public and private institutions offer older persons access without discrimination to comprehensive care, including … appropriately manag[ing] problems related to the fear of death of the terminally ill.’ 125 Advocates and UN agencies continue to strain to link human rights and the environment. 126
Perhaps the crux of the problem is that many human rights advocates, both ‘northern’ and ‘southern’, confuse their own social agendas with the promotion of internationally recognized human rights. For example, requiring women by law to cover themselves and remain in every respect subservient to men violates the international human rights prohibition against discrimination based on sex. On the other hand, even very strong social and/or religious pressures on women to conform to certain social norms do not violate human rights standards—which constrain governments, not one’s family or church or social peers. No one suggests that international law should force the Catholic Church to ordain women priests, for example, and voluntarily accepted Islamic, Jewish or fundamentalist Protestant tenets regarding the ‘place’ of women are no different. It is racist behaviour if one’s family cuts off all contact with a family member who marries someone of a different ethnicity or caste, but human rights law does not mandate the family’s acceptance of such a situation, and the family’s racist attitude does not per se constitute a human rights violation under international norms.
Such social constraints and attitudes are indefensible in a modern society populated by diverse cultures and traditions, and I believe that greater equality and tolerance of difference are likely to develop almost inevitably as societies modernize. However, not everything that I (or any other human rights advocate) believe is mandated by international law. There are, of course, limits—enforcing a particular sect’s views of morality by using violence against women goes beyond freedom of religion and cannot be condoned. Tradition cannot justify the genital cutting of young girls, and continuing discrimination in work or housing based on caste or social status must be combatted. If a government persistently ignores widespread domestic violence or child abuse, it is violating human rights, since the state is obligated to guarantee rights not only by abstaining from interfering with individual freedoms but also by ensuring an individual’s right to physical security in the private sphere. 127
As societies evolve politically and economically, social mores and cultural norms also change. However, it is a mistake to try to squeeze all socially desirable progress into the human rights framework. Universal human rights norms do not mandate the degree of economic equality that a society should seek; they do not impose a particular view of relationships within the family; they do not tell societies how much to spend on guns versus butter; they say almost nothing about foreign policy and trade. Each of these issues is important (and perhaps even more important to most people than rights), but human rights provide only the context in which these difficult issues should be decided—a democratic society in which free debate is possible and non-discrimination guaranteed.
Similarly, not everything bad (from a ‘Western’ or modern perspective) is a human rights violation. There is certainly a need to address the root causes of poverty, promote social justice and mutual respect among communities, end corruption and lessen global disparities, but this does not necessarily mean viewing everything through the prism of ‘rights’—human rights are not designed to provide an answer to every social, political or ethical question that arises in our increasingly complex world. Insisting that they do so undermines their ability to achieve their more limited (but no less valuable) aims and interferes with the need for societies to continue to reflect their different histories and cultural heritage, within the bounds of what is actually mandated by international law.
In addition, substituting the adversarial absolutism of rights language for the often more fruitful path of dialogue and open political debate may make it less likely that society will be able to arrive at viable solutions. Moreover, problems such as identifying the best way to promote economic development, how to deal with climate change and sustainability, the most appropriate trade and immigration policies for a given country, or how to apportion available resources among competing demands require a much broader, fact-based discussion than is likely to emerge if the only argument is whether my ‘rights’ are superior to yours. There is a legitimate role for human rights advocacy to ensure that society does not limit recognized rights unduly or in a discriminatory manner, but treating rights as a comprehensive quasi-religious doctrine within which all answers may be found is nonsense.
7. THE INHERENT FLEXIBILITY OF HUMAN RIGHTS NORMS
Understandably, most human rights advocates (and governments) talk about human rights in summary fashion, referring simply to ‘freedom of expression’ or the ‘right to housing’. Few human rights are absolute, however, and the drafters of the Universal Declaration and subsequent instruments understood that rights may be legitimately limited by other competing rights or interests. Among the reasons identified in treaties that may justify such limitations are protection of the rights and freedoms of others, public order ( ordre public ), public health, public morality, national security and the general welfare.
Of course, these terms are frequently advanced by states to justify violating rights, not simply limiting them, but their mere invocation does not free a state from upholding its human rights obligations. Rights may be limited only if the limitations are necessary (not merely convenient or desirable), imposed by law (not just at the whim or total discretion of government officials) and for purposes that are essentially democratic (an authoritarian government cannot limit rights merely to keep itself in power). In addition, human rights treaties subject states to at least a degree of international oversight, and it is up to these international bodies, not states themselves, to offer an opinion as to whether a limitation is justified and proportionate.
Restrictions on rights imposed in good faith, for legitimate purposes, enable states to adapt universal human rights norms to specific local conditions. Fair trials must be possible under both common law and civil law jurisdictions. Humane prison conditions may vary from country to country, although a universal floor of minimum treatment may exist. Priorities may need to be set when fulfilling many economic, social and cultural rights.
Jack Donnelly, a political philosopher who has written frequently and persuasively about the ‘relative universality’ of human rights, adopts a useful three-tiered description to explain what I refer to as the inherent flexibility of human rights. In Donnelly’s analysis, the broadest level is that of the ‘concept’ of human rights, where there is near universal consensus on broad principles such as the liberty and security of person and the right to social security. 128 At the second level, these concepts have multiple and defensible ‘conceptions’ of the rights they articulate, in which factors such as history, ordre public and culture may play a role. 129 The lowest level is that of ‘implementation’, when specific norms are translated into national law and practice. 130 Donnelly offers as a particularly good example of the implementation phase the myriad forms of electoral systems that could be adopted in order to implement the right ‘to take part in the government of his country, directly or through freely chosen representatives’. 131
Donnelly’s tiered analysis is not precise, and the distinction between ‘concept’ and ‘conception’ may beget a certain degree of confusion, if only linguistic. However, the schema accurately portrays in a general sense the way in which international human rights law is translated into practice by states. Thus, universality does not, cannot and should not be equated with uniformity, at least in a world of diverse societies and sovereign states.
The CESCR makes explicit the distinction between acceptance of legally binding international norms and their implementation. Article 2.1 of the CESCR provides as follows:
Each State Party to the present Covenant undertakes to take steps , individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (emphasis added)
The Optional Protocol to the ESCCR, which was adopted only in 2008 and entered into force in 2013, specifically provides that, in its examination of individual communications, the Committee on Economic, Social and Cultural Rights [ESC Committee] ‘shall consider the reasonableness of the steps taken by the State Party …. [and] shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant’. 132
Because of the broad language employed in the Covenant and the progressive nature of implementation, some commentators (particularly in the USA, which has signed but not ratified the ESC Covenant) question whether these are rights at all, but this is clearly a minority position. 133 Early in its existence, the ESC Committee noted that, ‘while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect’, among which is the obligation ‘to take steps’. 134 These steps ‘must be taken within a reasonably short time …. [and] should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant’. 135 In addition, states have ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’ in the covenant. 136
There is no comparable reference to progressive realization in the International Covenant on Civil and Political Rights (CCPR), and states are ‘to respect and to ensure’ the Covenant’s rights and ‘ensure that any person whose rights … are violated shall have an effective remedy’. 137 In practice, however, it is difficult not to conclude that civil and political rights also are implemented flexibly, if not explicitly progressively. For example, Article 10’s requirement that detainees ‘shall be treated with humanity and with respect for the inherent dignity of the human person’ is likely to be interpreted differently if one is examining prison conditions in Denmark, Brazil or Chad; the norm is the same, but implementation in such different countries will vary according to both capacity and differing notions of ‘dignity’. Even given the fairly specific ‘minimum guarantees’ set forth in Article 14.2 that apply to anyone charged with a criminal offence, the basic obligation to ensure ‘a fair and public hearing by a competent, independent and impartial tribunal’ in any civil or criminal proceeding (Article 14.1) is a relatively broad concept whose precise interpretation and implementation may vary from state to state and as judicial systems within states develop. The prohibition against ‘arbitrary or unlawful’ interference with one’s privacy or reputation in Article 17 surely must be balanced by Article 19’s protection of freedom of expression, and that balance is likely to vary with cultural and social norms.
Variation in interpretation and implementation is evident for many rights, perhaps none more so than freedom of expression. As articulated in Article 19.2 of the CCPR, the right includes ‘freedom to seek, receive and impart information and ideas of all kinds’. However, the subsequent paragraph notes that the exercise of the right ‘carries with it special duties and responsibilities’ and that it may be restricted, where necessary, in order to respect the rights or reputations of others, national security, public order ( ordre public ), public health or public morals. 138
International human rights bodies recognize flexibility in many ways. For example, the European Court of Human Rights will not act as a ‘fourth instance’ by serving as an appellate court from decisions of national courts applying national law. 139 As discussed below, limitations based on public order ( ‘ordre public’ ) may recognize the relevance of a state’s historical circumstances and cultural or religious foundations.
In the jurisprudence of the European Court of Human Rights, the flexible interpretation of rights is achieved through use of the doctrine of the ‘margin of appreciation’. 140 ‘By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content’ of human rights, when they determine what limitations are necessary. 141 This state discretion is not unlimited, and it goes hand in hand with international supervision, but it reflects the subsidiary role of human rights bodies and the fact that ‘the initial and primary responsibility for the protection of human rights lies with the contracting parties’ to human rights treaties. 142
Of course, such deference to the state can be dangerous, and it is often difficult to discern the criteria upon which states are determined to have exceeded or acted within their margin of appreciation. 143 Differences of opinion over whether an act falls with the margin of appreciation frequently depend on one’s view of the outcome of the case—confirming or rejecting a state’s arguments for limiting the exercise of a right—rather than on the application of well-articulated criteria. Nevertheless, some discretion in interpretation and implementation of human rights norms is essential, unless one believes that every right must mean exactly the same thing in every country at all times.
Country-specific deference has been shown by the European Court of Human Rights in permitting Turkey to limit the wearing of headscarves 144 and to retain an electoral system that may result in effectively marginalizing regional parties; 145 permitting France to ban the public wearing of the niqab or burka (through a law outlawing face coverings in most circumstances); 146 and allowing Italy to require that crucifixes be hung on the walls of public school classrooms. 147 Concern for the rights of others was expressed by the Court in each of these cases, but the specific circumstances of each state—and the open, democratic manner in which the challenged restrictions had been adopted—led the Court to allow the concerned states their ‘margin of appreciation’ and to recognize the historical realities of each. 148
A former president of the European Court of Human Rights has observed that ‘essentially the Convention guarantees are applied in a context defined by the democratic society in which they function. This is just common sense. Human rights cannot be and should not be divorced from the practical day-to-day functioning of society’. 149 Domestic laws are frequently founded, if only implicitly, on a society’s moral and/or religious beliefs, and international human rights law permits a great deal of discretion to states in legislating such beliefs. Even in a relatively homogeneous region such as Europe, for example, the European Court of Human Rights has consistently been unable to identify a common European conception of morality. 150
The issue is not that it is wrong to argue that societies and cultures should change, and evolving conditions make resisting any change whatsoever both impossible and undesirable. In particular, outsiders should be able to support domestic efforts to foster social change that is consistent with modern values of tolerance and non-discrimination. However, focusing on what are seen by many cultures as particularly ‘Western’ rights, such as the rejection of gender role stereotypes, advocacy of same-sex marriage, or prohibiting corporal punishment for children, 151 may undermine efforts to guarantee or restore equally important rights on which one may be able to find a wider degree of agreement. International human rights law does not lend itself well to the concept of ‘best practices’ that often finds its way into UN documents; even if it did, it is foolish to assume that what is ‘best’ is to be found solely in liberalism or capitalism, as those terms are understood in the USA and much of Europe. 152
Assailing the Taliban for violating women’s rights was accurate and appropriate, but it missed the point—the Taliban regime violated everyone’s rights, and change was less likely to result from campaigns directed at violations that also were consistent with entrenched social customs, no matter how distasteful those customs are to modern societies. Similarly, while the sometimes violent rejection by crowds in Cairo in March 2011 of attempts to raise women’s rights issues was reprehensible, 153 there was perhaps some justification for a feeling that the broader goals of regime change and democracy were more important than highlighting the concerns of any particular sub-group of the population, no matter how large or how well founded its complaints.
Even legitimate complaints about rights violations may be lost if the context is muddied. For example, while members of the punk protest group Pussy Riot who were sentenced to years of imprisonment for interrupting a religious service to protest Russian government policies were certainly victims, they were hardly human rights heroes or defenders. Performance art, even if deliberately aimed at political or cultural sensitivities, is protected under the guarantee of freedom of expression, but interfering with the rights of others (the Russian Orthodox clergy and parishioners, in this case) under the guise of free expression can be legitimately restricted. If the band members’ imprisonment, as claimed by the New York Times , ‘elevated their stature into global symbols of human rights and freedom in Russia’, 154 one wonders how this resonates with ordinary Russians suffering from daily rights violations far removed from restrictions on punk artists. The impact of international human rights law risks being weakened if human rights are highlighted primarily in the context of popular causes and celebrity. 155
Finally, shorthand references to rights also may ignore the content of the obligations that states have actually assumed. While it may be surprising that Saudi Arabia, for example, has ratified the Convention on the Elimination of All Forms of Discrimination Against Women, it has done so with a telling reservation that limits its acceptance of the convention’s provisions to those that do not contradict ‘the norms of Islamic law’. 156 Other states have objected to this reservation on the grounds that it is incompatible with the object and purpose of the Convention, 157 but it is no doubt an accurate reflection of just how far Saudi Arabia is willing to go to comply with international norms. No state has refused to treat Saudi Arabia as a party to the treaty, despite the arguably illegal Saudi reservation. This and similar reservations have not prevented Muslim countries from improving women’s status and equality, albeit unevenly and sometimes almost imperceptibly, but neither do they represent a legal commitment to conceptions of gender equality as they are generally perceived in ‘Western’ societies.
Cultural overreaching also misunderstands—perhaps deliberately—the difference between legal norms and moral, political or social norms. It is precisely because ‘human rights’ have been legitimized by their inclusion in legally binding international treaties ratified by states that they are able to command respect—in theory, if not always in practice. The USA cannot claim the right to torture suspected terrorists, and China cannot refuse to provide full educational opportunities for girls—not simply because outsiders think that torture is bad and equal education is good, but because the USA and China formally bound themselves to respect and implement these rights. Law is not the only or even the most important source of societal norms, but it should not be conflated or confused with other norms that may stem primarily from the views of a particular society, religion or interest group.
Finally, a primarily legalistic, adversarial approach to rights whose content is either ill-defined or deliberately stated in broad terms to accommodate regional and national priorities is unlikely to be received favourably even by states willing to make a commitment to international norms. Rights that are capable of being legally enforced by an international body are a worthy goal, but to many countries they have come to represent yet another example of imposing ‘Western’ values on systems that are simply incapable of absorbing them. Indeed, concepts such as democracy and rule of law may have quite different meanings in different contexts. 158
8. THE WAY FORWARD
Calls for restraint and moderation rarely inspire the emotional commitment that often flows from appeals to absolute truth and fundamentalist conviction. There is a fine line between admirable dedication to a cause and inflexible zealotry, however, whether the cause is human rights or the promotion of moral or religious purity. This essay is an appeal for radical moderation, which celebrates and promotes human rights norms without distorting or deifying them. It rejects starry-eyed human rights lawyers who aspire to be social reformers, as well as narrow libertarians and positivists who believe that both states and law are nuisances, to be tolerated only so long as they do not interfere with individual greed and intolerance. This moderately radical approach also rejects claims by many domestic social activists that international human rights law provides a dispositive answer to addressing internal disparities in political and economic power that would, in many cases, be better resolved through political debate and activism within the society.
This limited view of human rights is consistent with a belief that, first, international law does matter and, secondly, it is not a bludgeon to be used primarily by the powerful against the weak. This is an avowedly legalistic approach, and its corollary is that maintaining the distinction between law and morality or law and politics is important. Recognizing that these concepts are created and enforced differently does not diminish any of them; if anything, it should reinforce the fact that social progress can only be achieved by appealing to law, politics and morality.
Human rights advocates rhetorically insist that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated,’ 159 but this is not realistic in either theory or practice. People demand rights that are most immediately necessary or that are in some manner prerequisites to enjoying additional rights. For example, while a good education is not a formal prerequisite for participating in political decision-making or ensuring an adequate standard of living for one’s family, it will probably increase the likelihood that the two latter goals will be achievable. Protecting women from endemic violence and minorities from discrimination are de facto requirements if they are to enjoy other rights.
A more realistic focus for the foreseeable future on the most fundamental and achievable human rights is more likely to lead to progress than is a diffuse approach that plays on momentary outrage or reflects a social agenda that dovetails with the preferences of Western funders and politicians. The notion of fundamental or core rights is both old and controversial, and I acknowledge the weakness of the reference. However, this is a more realistic approach for advocates and practitioners than is simply intoning the mantra that all rights are equal, indivisible, etc. 160 Just as in medical triage, such a focus does not imply a rejection or diminution of the entire gamut of internationally recognized rights, any more than treating the most urgent and curable cases first undermines the physician’s Hippocratic Oath. Human rights triage may even have an advantage over medical triage, since effective protection of such rights such as free expression, the prohibition against torture, freedom of trade unions, non-discrimination and the obligation of government to foster an improving standard of living is likely to have a snowball effect that will make it easier in the future to guarantee all rights.
This approach is not sexy, and it risks losing some of the emotional support for human rights that stems from highlighting war casualties or publicity-friendly global issues such as the plight of children. It may unfortunately be interpreted to support an overly conservative approach that discourages the formulation of new rights that are required to respond to social, political and technological change. It does not directly address many of the major issues with which the global community and individual societies are faced on a daily basis.
Whether unfortunate or not, the fact is that international human rights law per se has had very little impact on the conduct of war, the conclusion of peace agreements, the reconstruction of post-conflict societies, the redistribution of wealth, economic theory or restructuring power relationships within families. The solutions to most conflicts or malfunctioning societies are too complex to be aided in a significant way by simplistic appeals to human rights law. At the margins, human rights can help design a more responsive and equitable system of government; they may promote transparency and accountability and undermine an atmosphere of privilege and impunity; they may mandate wider participation for more people and diminish at least de jure discrimination. But human rights norms are targeted at regulating the relationship between individuals and their governments, not offering grand plans for the (re)construction of society itself.
Despite the obvious difficulties in dealing with the frontiers of human rights law or setting priorities, one should not ignore the consensus that does exist in all regions of the world over the core content and legitimacy of most human rights. Fair trials, freedom from torture, prohibitions against arbitrary killings and systematic racial discrimination, obligations on the state to promote basic socio-economic rights—all of these norms are widely accepted in principle, even if practice leaves much to be desired. They are accepted by governments, at least formally, and by most activist members of civil society, although both government and civil society have goals that transcend the narrow bounds of human rights. However, the debate over the precise scope of human rights law in some areas should not obscure our agreement on its content in many other areas.
At the same time, we cannot assume that the battle for even a reasonably conservative definition of human rights has been won, any more than history ended in the late twentieth century. For example, many Asian and African countries are seeking to reduce the responsiveness of the new UN HRC, not expand its effectiveness. What has been termed a new form of ‘authoritarian capitalism’ is emerging in Singapore, China and elsewhere, but both civil–political and economic–social–cultural rights will be at risk in any country that values free enterprise yet opposes freedom in any other context.
Among many other blatant rejections of human rights norms, suppression of human rights defenders and government critics has increased in Russia and China in recent years. A military coup in Thailand in 2014 overthrew a democratically elected government, in favour of the traditional political and economic elite that had consistently lost elections for the preceding decade. A military coup in Egypt overthrew the government democratically elected after the ouster of Hosni Mubarak in the 2011 ‘Arab spring’. Trinidad and Tobago withdrew from the American Convention on Human Rights in 1998; Venezuela followed suit in 2012. In 2011, the Council of Ministers of the South African Development Community (SADC) unanimously decided to dissolve its Tribunal and replace it with a tribunal that was expressly prohibited from receiving or hearing human rights complaints from individuals. 161
Regression has also occurred in countries usually deemed to be supporters of international human rights law. US President George W. Bush formally approved the use of ‘enhanced interrogation techniques’—that is, torture—to extract information from suspected terrorists in the aftermath of the attacks on New York and Washington on 11 September 2011. 162 His brother and then candidate for the Republican presidential nomination in 2016, Jeb Bush, refused to rule out a return to those practices. 163 While waterboarding and other forms of ‘enhanced interrogation’ were formally ended by Barack Obama when he took office in January 2009, the Obama administration declined even to investigate, let alone prosecute, those responsible for the torture, in direct violation of US obligations under the Torture Convention. 164 President Obama has been thwarted in his proclaimed goal of closing the detention camp at Guantanamo, Cuba, due to Congressional action making the closing impossible. 165
The UK has refused to comply with a number of judgments by the European Court of Human Rights that British laws restricting the right to vote of convicted felons violate the European Convention. 166 While claiming that no one should ‘doubt the British commitment to defending human rights’, British Prime Minister David Cameron has argued that the European Court’s failure to take account of ‘democratic decisions by national parliaments’ may mean that ‘the very concept of rights is in danger of slipping from something noble to something discredited … ’ 167 The government recently passed a rule that universities that invite speakers ‘with extremist views linked to terrorist groups’ must ensure that they are challenged by others. 168
The ‘war on terror’ continues in many countries and all regions of the world, providing a continuing excuse for indefinite detention without trial, torture, killings and other human rights violations that commonly occur in the name of protecting the so-called national security. While it is legitimate (and even required) that governments respond to and attempt to prevent terrorist attacks, the constant drumbeat about terrorism from government officials and in the media has created a climate in which human rights are often lost. 169
[D]anger and fear are fast replacing dignity and hope as the terms that come first to mind when we describe the shape of the world in which we live …. In order to ensure its survival, the human rights idea needs to stand firmly against this kind of distortion of its essence, this move to turn it into a basis for selective aggression abroad and an alibi for brutality at home. 170
It would be inexcusable hubris to expect that ‘human rights’ will look exactly the same in 50 years as they do today—and it would be overly optimistic to assume that future changes will necessarily broaden the list of what we today consider to be rights worth protecting. 171
Perhaps instead of focusing exclusively on the flaws of the modern human rights enterprise, including the deficiencies of its legal core, those who are committed to human rights should question their confidence that the system is stable and that the only change to be anticipated in the future is further progress. 172
In addition, attempting to expand the scope of human rights too quickly plays into the hands of those who exalt stability above all else, and consolidating rights within societies remains a formidable task.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’ 173
Words are power, and those who would be masters of the words must be aware of the consequences of their misuse. Good intentions do not excuse bad policies; dedication to an ideal does not excuse acts that render that ideal less realizable. Responsible and effective human rights advocacy, whether by governments or NGOs, requires reinforcing consensus, recognizing limits and remembering that the goal is to enable individuals and societies to determine their own future in dignity and independence. 174 Without sacrificing the goal of universal compliance with universal standards, a moderate—but persistent—approach to human rights may prevent the erosion of one of the twentieth century’s greatest legacies: the recognition of rights that we all should enjoy.