By Patrick Finnegan
“International Human Rights Law” may not be a common household expression in the United States, but its effects are felt here and around the world. For example, many of the legal challenges to the second Bush Administration’s use of torture on “War on Terror” detainees were not only based on U.S. law, but also on U.S. treaty obligations as defined by the UN Convention Against Torture and the Geneva Conventions. Advocacy groups, policymakers, and others in the U.S. routinely invoke human rights law in regard to other issues too, such as immigrant rights and the use of drone strikes. In some countries, human rights treaty obligations are automatically incorporated into domestic law after ratification, making them a critical part of national legal and political processes.
Treaty obligations, of course, do not necessarily lead to respect and compliance. Even before Brexit and the election of Donald Trump, international policymakers and academics began to question the continuing relevance of international human rights. In the wake of Donald Trump’s election, BBC journalist Imogen FoulkesAre we heading towards a ‘post human rights world’?” She asks if human rights treaties will continue to be relevant in an era of brazen violations, widespread displacement, and rising nationalism. In the academic world, there is a strain of thought, perhaps best embodied by Professors Stephen Hopgood and Eric Posner, that suggests that international human rights law as we know it will soon come to an end.
Posner’s arguments mostly focus on what he sees as the human rights regime’s ineffectiveness and relative lack of enforceability, as well as the excess proliferation of treaty obligations. Hopgood emphasizes the disjuncture he sees between the global aspirations of human rights and the dependence of the movement on Western power. He argues that, not only do states frustrate the noblest aspirations of human rights-based universality, but also that states are – ironically – integral to the growth of the entire paradigm. In Hopgood’s framework, the rise of hard-edged nationalism on both sides of the Atlantic underscores this fundamental problem. Both Posner and Hopgood contend that human rights as a field is plagued by a hubristic sense of world-saving self-righteousness. Although they come from different perspectives (and most likely different politics), Hopgood and Posner both argue, essentially, that human rights as we know it is on an inevitable countdown to irrelevancy, if not total collapse.
I’ll grant that these are provocative theses that are worth some real consideration. They should not, however, be read with an uncritical eye. Other scholars and practitioners with more experience and wisdom than me have commented on the details of both arguments, notably Marsha Freeman, Michael O’Flaherty, and Beth Simmons. I would like to highlight bigger-picture differences I have with the “human rights apocalypse” thesis.
Essentially, I think that Posner and Hopgood’s arguments fail to adequately entertain the possibility of evolution of the international human rights paradigm, in both theory and practice. Posner and Hopgood seem to feel that, in the face of strong winds of global geopolitical change, human rights will break rather than bend. But this view assumes an excessively doctrinal and caricatured image of what human rights advocacy actually looks like in the real world. While there are certainly rigid utopians in the human rights crowd, I think there is a strong and growing belief among both scholars and practitioners that human rights principles serve as a broad moral, legal, and political framework for the discussion of how people should be treated by authority and by each other. Yes, there are minimum standards and prohibitions on certain practices, like torture. But within that framework, there are a range of viewpoints and plenty of room for healthy debate. Human rights does not have a strict policy prescription for every situation; rather, it is designed to shape law and policy.
Other global paradigms have arguably evolved and changed with the exigencies of the times. Why not human rights? In his reply to Hopgood, Michael Barnett discusses the imperialistic 19th century origins of modern humanitarianism. If – arguably – a fair bit of evolution has occurred to make humanitarianism more universal and less paternalistic, why couldn’t human rights do the same? Barnett might counter that humanitarianism has the much more modest goal of relieving immediate suffering in emergencies while human rights are utopian in nature. But human rights implementation isn’t the same for every right or category of rights, let alone for every organization. Indeed, the economic, social, and cultural rights paradigm acknowledges that states may not have the resources to instantaneously achieve minimum standards of food, housing, healthcare, and shelter. Article 2 of the Covenant on Economic, Social and Cultural Rights obligates each state party to work toward the full realization of such rights “progressively” and “to the maximum of its available resources.” So while there is a clear moral obligation to move forward, there is also room for contingencies.
My own experience with human rights defenders suggests that they are often more circumspect in their expectations than Barnett, Hopgood, or Posner would give them credit for. Many of these practitioners and scholars, I think, can see human rights as a useful space for discussing how people should be treated, and not one that necessarily prescribes a rigid set of rules applicable in the same way in all circumstances. It is an unfair simplification to paint the human rights movement with a broad brush as bleary-eyed universalists who fail to account for local context. Amnesty International, the world’s largest human rights organization, recently undertook a major strategic reorientation to support local human rights groups, while ensuring that Amnesty is accountable to and does not displace them. Another example is the approach of The Advocates for Human Rights, an organization with which I have been involved for over a decade. The Advocates operates on a framework of strong respect for local partners, only going to countries where it is invited. The Advocates’ staff and volunteers do not overtake local efforts, but rather enhance and empower them through capacity-building and training as requested.
I also think that Barnett and Hopgood build an artificial wall between what Hopgood calls “human rights” (broad principles or a “secular religion”) and what he calls “Human Rights” (the treaty bodies, NGOs, and attendant “industry”). For example, survey work by Professor James Ron and colleagues suggest that there is broad popular support for human rights advocacy in places like India, Mexico, Morocco, and Nigeria. Moreover, additional research in Mexico by Ron and his colleagues found evidence that this support is backed by a willingness among the Mexican public to donate to human rights organizations. Together, these studies provide some evidence that there is an affinity for human rights principles, as well as a concrete demand for advocacy and related services, in the Global South.
It is true that international human rights law often cannot be enforced as consistently, effectively, or systematically as national law. But this doesn’t mean that human rights are not a valuable political and legal tool. The work of Professors Beth Simmons and Kathryn Sikkink makes a strong case for how domestic human rights advocates use international human rights as leverage for local demands for better treatment and respect, including demands emphasizing social justice. Interestingly enough, Hopgood offers social justice as an alternative to “Human Rights” after they meet their demise. But human rights and social justice are often bound together – if not synonymous – in advocacy campaigns. Economic, social, and cultural rights are an integral part of the international human rights regime. Even if, arguably, Western countries prioritize civil and political rights, the fact is that economic, social, and cultural rights matter a great deal to many organizations, advocates, scholars, and others around the world.