IR chapter 12
Why Do States Sign Human Rights Agreements?
-Some states have an interest in imposing human rights law on themselves as a means of demonstrating their commitment to democracy and political liberalization. While some governments have an interest in repressing human rights to retain political power, liberal or liberalizing governments often have an interest in promoting human rights as a means of committing themselves and their successors to political reforms. This observation implies that the countries most eager to ratify human rights treaties should be newly democratic or democratizing states—a proposition for which Moravcsik and others find some support. In this conception, international human rights law is a tool that states use strategically to alter their own domestic political incentives.
Five Innovations in the Protection of Human Rights
1). Transitional Justice 2 Individual Petition 3 Universal Juridiction 4 The International Criminal Court 5 Harnessing Material Interests
International Criminal Court (ICC)
A court of last resort for human rights cases that possesses jurisdiction only if the accused is a national of a state party, the crime took place on the territory of a state party, or the UN Security Council has referred the case to the prosecutor. was established in 1998 and came into force in July 2002 after 60 states ratified its founding treaty. As of the end of 2020, 123 states have accepted the jurisdiction of the ICC and thus have become "state parties." The ICC possesses jurisdiction in a case only if the accused is a national of a state party, if the crime took place on the territory of a state party, or if the UN Security Council has referred the case to the prosecutor. Moreover, the ICC is a court of last resort, meaning that it cannot act if a national judicial authority has genuinely investigated or prosecuted a case—regardless of the outcome of that investigation or prosecution. The ICC can act only when a state cannot or will not act itself. As of April 2021, 30 cases have been brought before the ICC for investigation or trial
Universal Declaration of Human Rights (UDHR)
A declaration, adopted by the UN General Assembly in 1948, that is defined as a "common standard of achievement for all peoples" and forms the foundation of modern human rights law. adopted by the UN General Assembly in 1948, is the product of those deliberations. Defined as a "common standard of achievement for all peoples" and broadly accepted as the foundation of modern human rights law, its 30 articles identify a diverse set of rights. Although governed only by soft law (see Chapter 11), the UDHR is today considered to be the authoritative standard of human rights. René Cassin, one of the main authors of the UDHR, described the document as having four pillars, supporting "dignity, liberty, equality, and brotherhood." Each of the pillars represents a different historical principle and philosophy of human rights. The first two articles of the UDHR set out a timeless human dignity shared by all individuals regardless of race, religion, nationality, or sex
individual petition
A right that permits individuals to petition appropriate international legal bodies directly if they believe a state has violated their rights.
Harnessing Material Interests
Another source for optimism is the proliferation of RTAs with human rights provisions. As we saw in Chapter 7, nearly every country in the world now belongs to at least one RTA, and nearly all RTAs contain some provisions on human rights. Some agreements are soft, or merely declarative, and appear to have no effect on behavior. Increasingly, though, RTAs contain obligatory and precise human rights provisions that bind states to international standards of behavior and threaten to withdraw trade and financial benefits if periodic reviews find substantial abuses of human rights. These hard provisions link concrete, material benefits of market access to a state's human rights practices. Unlike human rights agreements in general, and even soft RTAs, these hard provisions do have a significant, if small, effect on the extent of human rights violations.51 Ironically, protectionist groups looking to insulate themselves from import competition by including human rights provisions in free-trade agreements may have devised effective weapons for protecting human rights abroad—and their self-interest in seeing the agreement's benefits revoked may make threats to use these weapons credible. Human rights advocates would do well to find other ways in which they can harness instrumental, material interests to their cause of promoting better human rights practices.
controversies of ICC
As it begins to investigate and prosecute possible crimes against humanity, critics point out that nearly all the cases under consideration are from Africa, even though severe human rights violations occur elsewhere as well.47 This pattern of prosecutorial conduct, they charge, reflects either blatant racism or, perhaps less insidiously, a willingness by the court to proceed only in regions where the major states are not significantly involved. Many African countries are quite critical of the ICC and are threatening to withdraw. Either way, the ICC risks becoming a political entity rather than a true court of last resort. The United States, too, remains highly critical of the ICC. President Bill Clinton signed the treaty establishing the court shortly before he left office, which permitted the United States to participate in further negotiations on the court's rules of procedure. Almost immediately upon taking office, however, Clinton's successor, President George W. Bush, "unsigned" the treaty—a largely symbolic act.
trade protectionism
By pushing for the insertion of human rights clauses into RTAs, the developed-country unions may be making free-trade pacts less appealing to developing-country trading partners and, therefore, less likely to be approved. Human rights provisions open up the opportunity for future claims that the trading partner is violating the terms of the agreement and that the trade concessions made by the home country should be withdrawn. For labor in the developed countries, human rights provisions in RTAs may be "poison pills" designed to prevent further movements toward free trade
The ICCPR details:
Details the basic rights of individuals and nations, defining in sometimes more precise terms the political and civil rights first claimed in the UDHR. The ICCPR affirms the rights to life, liberty, and the freedom of movement; the presumption of innocence; equal standing before the law; legal recourse when rights have been violated; and privacy. In addition, all individuals are guaranteed freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of assembly and association. The covenant forbids torture and inhumane or degrading punishment, slavery and involuntary servitude, and arbitrary arrest and detention. It also prohibits propaganda advocating war or hatred based on race, religion, or national origin.
Do Countries Comply With Human Rights Agreements?
Do Countries Comply With Human Rights Agreements?
Moral and Philosophical Motivations
Domestically, human rights depend on state respect for the individual. It is our status as humans that creates and sustains our rights. It follows in the views of some philosophers and human rights advocates that we cannot secure these rights in our own countries unless we also seek to promote respect for rights abroad. If it is acceptable for some governments to abuse the rights of some people, what principled defense can we give if our own government wants to abuse our rights? In this view, human rights are secure only if they are universal not merely in principle but also in practice. Finally, we have been socialized to identify with universal human rights. Human rights NGOs and the larger human rights advocacy network have played a critical role in educating the public about human rights and human rights practices, calling attention to human rights abuses, and eventually bringing pressure to bear on states. Empathy produces support not only for victims of natural disasters but also for victims of human rights abuses. Indeed, many individuals deeply support the cause of human rights for all, especially for the disadvantaged, and empathy drives many of their efforts at human rights protection. Gross violations of human rights, like genocide, strongly affect and motivate individuals and states to respond
When Do States Take Action on Human Rights?
First, states act when they are faced with domestic pressure to do something to stop human rights abuses. As noted already, few governments have intrinsic interests in promoting international human rights, and most do so only in response to domestic political pressure. Governments normally weigh demands to stop abuses, however, against potential costs to business interests or other diplomatic initiatives. Domestic pressure often produces merely toothless condemnations of the abuse or loose and ineffective economic sanctions. Nonetheless, the more outrageous the abuse, the greater the domestic pressure on governments to act. In a particularly extreme case, when President Bashar al-Assad of Syria used chemical weapons against his own civilians in April 2017, U.S. president Trump punished the Syrian regime by launching 59 cruise missiles against the Shayrat air base near Homs. Although President Trump had derided foreign military interventions during his campaign for the presidency, this use of force against Syria received broad support at home. It was not, however, followed up by any additional pressure from the United States or others. When limited action such as this is taken, it may not be effective in changing state behavior.
Interests (Asian Debate)
For many human rights advocates, the Universal Declaration of Human Rights is aptly titled. However, an alternative, "Asian values" approach to human rights was propounded by Southeast Asian leaders in the 1990s, most visibly by Mahathir Mohamad of Malaysia and Lee Kuan Yew of Singapore. As East Asian countries began to develop more rapidly, often under authoritarian governments with a notable degree of control over their economies, their leaders asserted a distinct—and in their view, superior—"Asian" approach to human rights.
Guiding Principles for Business
GPs aim to establish a norm that businesses are obliged to respect human rights and that states have an equal obligation to ensure that firms operating in their territories fulfill that obligation. Faced with fundamental conflicts between human rights advocates, who want hard legal standards, and the business community, which favors voluntary "best practice" measures, the GPs aim only to establish a standard that would, if it attracted sufficient support, gain adherents over time. Norms matter, of course, but in anticipating disagreements between states, the GPs were intentionally limited to soft law. To the extent that they carry any force, it is through their adoption as standards by NGOs and TANs who then monitor and hold businesses to account. So far, such critical (typically pro-business) organizations as the International Chamber of Commerce and the International Bar Association have committed to the standards. As of August 2020, only 23 countries had adopted the recommended National Human Rights Action plans called for by the GPs.53 Nonetheless, the GPs are significant in international human rights law, moving human rights expectations beyond states to business entities that operate within states.
controversies of ICC
ICC is insufficiently accountable and lacks oversight mechanisms for both the judges and the prosecutors. On the dimensions of international law discussed in Chapter 11, critics fear that the ICC has been delegated too much power to interpret still-imprecise laws. Opponents are concerned that, without any means to remove activist judges, personnel at the ICC may escape political control and develop too much independence. In addition, international human rights case law and precedent are thin. Without adequate guidance from state parties on the intent of international law, the court might not just interpret, but essentially make, international law itself. Finally, critics claim that the ICC, given its prosecutorial and judicial independence, might clash with the more political and problem-solving approach of the UN Security Council. Whereas diplomacy must be flexible and aware of context, judicial proceedings that stress precedent, statutory interpretation, and equity across similar cases may conflict with the UN Security Council's charge to maintain peace and security.
Cases of Sanctions
In the case of South Africa, the political opposition to White-minority rule actually called for and supported sanctions. As Bishop Desmond Tutu, a South African leader in the anti-apartheid movement, wrote in the New York Times in June 1986: "There is no guarantee that sanctions will topple apartheid, but it is the last nonviolent option left, and it is a risk with a chance." The Iraqi case was different. The sanctions were imposed not at the request of opposition groups within Iraq (who at the time were still heavily repressed by the regime) but by the United States and its allies. In the midst of the sanctions against Iraq, then U.S. ambassador to the UN Madeleine Albright was asked in a 60 Minutes interview about the possibility that up to half a million Iraqi children had died as a result of the trade and financial restrictions. Albright responded: "We think the price is worth it." Although she later said she had been asked a "loaded" question and regretted her answer, she did not disavow it.f But of course the "we" here was the United States, not necessarily the Iraqi people.
prisoners of conscience (POCs)
Individuals imprisoned solely for the peaceful expression of their beliefs. The term was coined by the human rights organization Amnesty International. One prominent POC was the Nobel Peace Prize winner Liu Xiaobo (1955-2017), who was jailed in 2009 simply for coauthoring a proposal for political and legal reform in China. -Amnesty International and the other major human rights organizations that make up the TAN have had much to do with shaping this process. Building support for human rights and changing conceptions of human rights-related interests for both individuals and states has been a major achievement of the human rights TAN.
The Universal Declaration of Human Rights (UDHF), adopted by the UN General Assembly in 1948, clarified the rights embodied inArticle 55.Life, liberty
Life, liberty, and the security of person (Art. 3)Equal protection under the law (Art. 7)Employment, equal pay, and just remuneration (Art. 23), amongmany others.
Moral and Philosophical Motivations
Many individuals identify with a common humanity and feel personally affected by the welfare and treatment of others, including those in countries other than their own. As social animals, humans possess a degree of empathy that is weaker in some, stronger in others, but present in all.24 This sense of empathy is on display most dramatically when individuals from countries across the globe donate to natural disaster relief efforts. The hurricanes that battered the Caribbean in late summer and fall of 2017 generated outpourings of international support and donations to victims, although for months later Puerto Rico remained without many essential services and little assistance from the mainland. When others suffer, we may hurt as well; this response can be a profound motivator of political action.
Do Human Rights Agreements Matter?
Nonetheless, optimists hope that these institutions may have a beneficial effect in the long run.International human rights laws empower domestic actors to advocate for their own rights. Treaties put human rights on the national agenda.Treaties can provide a legal resource in litigation.Treaties can spark political mobilization.These laws also allow TANs to create political pressure that may in time force states to act.
The ICCPR, which was largely favored by the Western states, protects:
Right to life, liberty, equality before the law Freedom of thought, religion, and expression Protection against torture and slavery
nonderogable rights
Rights that cannot be suspended for any reason, including in cases of social or public emergency. include freedom from torture or cruel and degrading punishment; the right to be recognized as a person before the law; and freedom of thought, conscience, and religion.9 In contrast, none of the rights identified in the ICESCR are nonderogable, and all can be limited by states acting under the law. Despite their special status, however, nonderogable rights are not automatically enforced more than other rights are, as the continuing practice of torture in countries around the world makes clear.
Do Countries Comply with Human Rights Agreements?
Some research shows that ratifying human rights treaties is associated with an increase in human rights violations.Other studies show that these treaties have a small positive effect on human rights practices.What could explain the mixed record?International human rights law might not matter and is, at best, sporadically enforced.States may ratify treaties simply to mask their continuing patterns of abuse.Countries that sign human rights agreements are also the ones that are most likely to abuse them.
Why do States Violate Human Rights?
Some states lack the capacity to prevent human rights violations. Others do so in order to defend their national security.Some governments violate human rights in order to preserve their own rule. Unstable democracies or autocracies are generally more likely to violate human rights than established democracies. Suppressing human rights is a political strategy.
Why do Countries Sign Human Rights Agreements?
Some states sign agreements in order to demonstrate their devotion to democracy.By signing an agreement, some new states aim to "lock-in"new institutions and practices.States may also sign treaties in order to gain contingent rewards provided by others.Others bind themselves to treaties in order to influence human rights in other countries.Humans are social animals, so many individuals feel personally affected by the treatment of others. Some believe their own human rights are only secure if they are universal in principle as well as practice.
Why Do States Violate Rights?
Some violations arise from a lack of state capacity. Many poor countries, for instance, may sincerely want to but simply cannot afford to provide free primary schooling to everyone, as required under the ICESCR. Other governments may not be able to control their militaries or police sufficiently to stem human rights abuses. For instance, the United States was appropriately criticized when its troops, apparently acting on their own volition and not under an official policy directive, abused prisoners at Abu Ghraib prison in Iraq during the 2003 war. Recognizing states' varying capacities to implement standards, many human rights are soft law, understood to be aspirations or goals toward which states should strive rather than strict rules to which they can and should be held accountable. States violate human rights in defense of their national security. Violent or potentially violent opposition to the state is illegal everywhere, and thus it counts as criminal, not political, behavior. Amnesty International specifically excludes as POCs any individuals who use or advocate violence. Nelson Mandela, a leader of the anti-apartheid movement in South Africa, was originally designated a POC in 1962 after his arrest for organizing strikes to protest apartheid. But Mandela's status was revoked by Amnesty after he was convicted in 1964 of trying to overthrow the government violently. Yet the dividing line between criminal and political activities is often ambiguous, and some states prosecute individuals as criminals for political actions that would be considered legal elsewhere. Even when actions are clearly criminal, however, prosecution and punishment may be abusive if individuals are not given due process under the law. When under attack or perceived attack, states are sometimes tempted to violate the rights of groups or individuals that they fear may be allied with a foreign power. Thus, the United States violated the civil and political rights of many of its own citizens in the infamous Red Scare of 1917-20, which followed the Bolshevik revolution in Russia-between 3,000 and 10,000 individuals were arrested, denied due process, and sometimes beaten during questioning
Institutions
The Asian values debate represented a significant attempt to alter the underlying norms of human rights, which had developed largely under the influence of Europe and the United States in the postwar period. As an institution, the UDHR was broad enough that all could see their respective priorities within it, so the controversy was really over which rights deserved to be foregrounded. As the debate unfolded, however, Lee of Singapore went further and criticized Western individualism for the perceived decadence of Western societies, including high rates of crime, drug abuse, and family breakdown. The debate was eventually cast not just as one of cultural disagreement over human rights priorities but as one of cultural superiority. This change in focus hardened differences on both sides of the debate. Support for Asian values as a distinct approach to human rights waned after the Asian financial crisis of 1997, which called into question the economic success on which much of the movement rested. Today, emphasis on a distinct Asian understanding of human rights is once again building under China's growing international leadership. As with the earlier Asian values campaign, appeals to Confucius—this time from China's Xi Jinping, among others—affirm party authority and subordinate political and civil rights to the need for political stability and growth. Even when nearly all countries sign on to a human rights institution like the UDHR, the specific rights that will be prioritized in practice remain contested.
International Bill of Rights
The UDHR, ICCPR, and ICESCR (twin convenants) collectively. Together, these three agreements form the core of the international human rights regime. Over time, additional rights have been added through supplementary conventions, as summarized in Table 12.1. The agreements listed in the table highlight the range of rights that are now more or less protected under international law, including, in certain cases, the right of individual petition through which victims of human rights abuses can seek redress directly from international courts. In short, as the list demonstrates, the international community now possesses an extensive body of international human rights law, albeit one that remains controversial and possesses varying degrees of national support for different provisions.
Does International Human Rights Law Make a Difference?
The accumulating evidence on the impact of international human rights agreements on state practice is mixed. This question is, as discussed in Chapter 11, a difficult problem for researchers because the countries most likely to sign human rights agreements are also those most likely to respect human rights. If we simply examined the relationship between signing agreements and protecting human rights, we would conclude, perhaps incorrectly, that the agreements were having a huge effect on practice when, in fact, these two factors simply occur together as a reflection of some underlying trait, such as democracy and a concern for political and civil rights, that leads states both to sign agreements and to protect those rights. As a result of these difficulties, as well as the measurement problems discussed in the previous section, different analysts have found different results. Some researchers find that international human rights agreements make no difference on practice or even have a negative effect once other factors that affect state practice (like income per capita and economic growth) are taken into account. This implies that signing agreements is associated with worse human rights practices, suggesting that international human rights law just might not matter very much.28 After all, international law, like most international agreements, depends on self-help, and in the absence of any third-party enforcers, it places the burden of enforcement on the victims of the crime. In the case of human rights law, these victims are the politically powerless individuals and groups who are abused in the first place. The burden of enforcement, therefore, rests on others who can speak and act on behalf of these victims. Yet not all states have a strong interest in penalizing violators of human rights; thus, international human rights law is, at best, sporadically enforced. Knowing this, states can choose to violate human rights with a degree of impunity. countries may sign international human rights agreements for their "expressive value" rather than as a commitment to better behavior.29 By signing these agreements, she suggests, states may hope to give the appearance of conforming to civilized norms of behavior while continuing to engage in actual practices that violate human rights behind the scenes or out of the public eye.
International Covenant on Civil and Political Rights (ICCPR)
The agreement, completed in 1966 and in force from 1976, that details the basic civil and political rights of individuals and nations. The ICCPR and ICESCR together are known as the "twin covenants.
International Covenant on Economic, Social, and Cultural Rights (ICESCR)
The agreement, completed in 1966 and in force from 1976, that specifies the basic economic, social, and cultural rights of individuals and nations. The ICCPR and ICESCR together are known as the "twin covenants."
When do States Act on Human Rights?
The ineffectiveness of human rights laws can be attributed to inconsistent enforcement.It is costly for states to enforce human rights laws.States are most likely to pay the costs of protecting human rights under three conditions.States are likely to act when confronted with domestic pressure to "do something" to prevent or stop human rights abuses.States are more likely to protect human rights when it serves their larger geopolitical interests.States may act when the principle of sovereignty, and consequently non-intervention, can be be bridged with other principles.
Interactions (Asian Debate)
The key articulation of the Asian values approach was the Bangkok Declaration of 1993. This document affirmed the commitment of signatories to the UDHR while also stressing the principles of sovereignty and noninterference. The Bangkok Declaration departed from the standard approach, however, in calling for greater attention to economic, social, and cultural rights and downplaying political rights and civil liberties. Proponents argued that Asian societies were founded on a philosophy that emphasizes the welfare of the community over individual freedoms. Rooted in Confucian thought, Asian values were said to prioritize respect for authority and social harmony. Critics of this position charged that it was simply cover for the authoritarian rule of Mahathir, Lee, and other political leaders within the region. Lee had been in power since 1959, and though he was often described as a "benevolent dictator," he detained without trial hundreds of alleged extremists and ruthlessly crushed political opposition. Mahathir was criticized for imprisoning political activists, including his rival Anwar Ibrahim, and for undermining the independence of the judiciary. As their countries succeeded economically, these leaders pushed back against their critics by appealing to different political principles and cultural affinities. Mahathir in 1997 called the UDHR an "oppressing" instrument by which the United States and other countries tried to impose Western values on Asians, adding that Asians needed stability and economic growth more than they needed civil liberties.a
Self-Interest and the Promotion of Human Rights
The movement to recognize and protect human rights began during the Great Depression and WWII.Protecting these rights against forms of totalitarianism was seen as essential to the preservation of international peace.Suppressing human rights creates domestic political understand potential revolt.Other states promote human rights in order to secure the self-interest of their citizens abroad.The US and Europe now demand that human rights clauses be inserted in almost all regional trade agreements (RTAs).
Do Countries Comply With Human Rights Agreements?
The number of agreements and declarations is on the rise (Simmons 2009).
The ICESCR, supported by communist states and the developing world, secures
The right to equal pay and a minimum standard of living The right to form trade unions and strike Free primary education
Transitional Justice
These new ways of seeking justice include truth and reconciliation commissions that aim to document and publicize past human rights abuses; reparations meant to repair the suffering of human rights victims; memorials that preserve evidence and commemorate victims of abuse; and institutional reforms, especially strengthening civilian control of the police and military. Also common is lustration, the government policy of preventing members of the previous regime from serving in political, bureaucratic, or sometimes even civil positions.
Why is human rights law ineffective?
This inconsistent enforcement may explain why international human rights law is often ineffective. For some governments, the temptation to ignore human rights law to secure their hold on power may be stronger than the fear of international penalties. With regime survival as a strong core interest and the relative rarity of effective international responses to human rights violations, few leaders may feel tightly constrained by international human rights institutions or the laws that they themselves have accepted as binding. It is costly for states to enforce international human rights laws. Naming and shaming may anger a violator whose cooperation is needed on some other diplomatic issue. Pressing the human rights provisions of the Helsinki agreement, for instance, meant that European states gave up bargaining leverage on other issues they cared about. Economic sanctions impose costs on the target state, but they also impose costs on exporters within the home state, who lose a potential market for their goods (see "Controversy" on p. 532). Businesses strongly resisted divesting from South Africa when it meant forgoing access to raw materials, cheap labor, and Africa's wealthiest consumers. Although promoting human rights always carries a price, states do sometimes act to punish human rights violations. Under what conditions is action worth it?
The first concrete international steps toward regulating how governments can treat their citizens were undertaken in the UN Charter, adopted in 1945:
This movement was spurred by the atrocities of World War II, especially the Holocaust, in which at least 6 million Jews and other minorities were systematically "dehumanized" and killed. Article 55 of the charter states that "based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."
Why Do States Sign Human Rights Agreements?
This notion of using international human rights treaties to commit to domestic political reforms also explains the weaker tendency and sometimes outright reluctance of established democracies to ratify human rights agreements. To the extent that human rights are already secured at home through constitutional protections and the rule of law, stable democracies have less need to bind themselves through international agreements.21 Thus, with its own Bill of Rights and stable democratic institutions, the United States, for instance, relies on its own, internal processes for protecting human rights and is reluctant to cede any authority to international treaties like the ICCPR or to international bodies like the UN Commission on Human Rights or the ICC (see the next section) to oversee its practices.
The Twin Convenants
Two separate agreements were formed to translate the UDHF intolegally binding treaties The International Covenant on Civil and Political Rights (ICCPR)The International Covenant on Economic, Social, and Cultural Rights (ICESCR) Together, the UDHR and the twin covenants make up theInternational Bill of Rights.
The third condition increasing the likelihood of state action against human rights violators is:
When the gap between the principle of sovereignty and international human rights law can be bridged. Central to the concept of sovereignty is the principle of nonintervention, which is often jealously protected by precisely those states most likely to be sanctioned by the international community for their violations of human rights law. States are, therefore, reluctant to criticize one another, except when the principle of nonintervention can be reconciled with other principles. The anti-apartheid movement was broadly supported, for instance, because it was framed not as foreign intervention but as an anticolonial struggle; thus, it fell under the right to national self-determination guaranteed in the ICCPR and ICESCR.
Articles 27 and 28
address rights of communal and national solidarity, which were first developed in the late nineteenth century and championed by the states emerging from colonialism.3 This last generation of rights, however, is far less developed in the UDHR than the first two generations are.
The first concrete international steps toward regulating how governments can treat their citizens were undertaken in the UN Charter:
adopted in 1945. This movement was spurred by the atrocities of World War II, especially the Holocaust, in which at least 6 million Jews and other minorities were systematically "dehumanized" and killed. Article 55 of the charter states that "based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."
Actual practice suggests that the norm against torture is:
ambiguous and fails to significantly constrain government behavior. That human rights norms have not yet been internalized or, at best, are only weakly internalized implies that individuals and states still act on human rights and enforce laws only when it is in their self-interest to do so
Criminal proceedings
are adversarial, pitting prosecutors who may not have strong evidence of abuses that the previous government intentionally hid from public view against defendants who have no incentive to admit past wrongdoing or provide information. Criminal prosecutions may also create incentives for human rights abusers to fight longer and harder to stay in power, lest they be accused in court and likely punished.39 To ease the transition to democracy and the rule of law, advocates suggest, revealing past abuses can heal a society and allow it to move forward rather than remain mired in prior conflicts.
Economic Sanctions
are most often imposed when countries have opposing interests, whether they differ over human rights practices, the development of new weapons, or some other issue. Restricting trade, travel, or new loans is an interaction or, more specifically, a form of coercion, intended to raise the cost of certain actions to the target state and thereby influence it to change its behavior. Since sanctions must be imposed by many, if not all, countries to achieve their desired result—as the target can otherwise obtain needed commodities or finance from nonparticipating countries—they are most likely to be effective when coordinated through a multilateral institution, such as the United Nations. Because countries may not have similar interests, reaching agreement at the UN or elsewhere can be difficult. Some of the most troubling sanctions were those imposed against Iraq after the Persian Gulf War of 1991. Four days after Iraq's invasion of Kuwait, the UN Security Council passed a resolution imposing economic sanctions on Iraq, including a trade embargo on all exports to the country other than basic food and medical supplies.a Although the war ended quickly, the sanctions continued for the next 12 years. One justification for maintaining the policy was that restrictions on international trade and finance would sap Saddam Hussein's power and thereby end the human rights abuses that the autocrat had inflicted on the Iraqi people. Yet the World Health Organization reported in March 1996 that, among other detrimental effects, sanctions-related deprivations in Iraq had caused infant mortality to rise by a factor of six, equivalent to the deaths of hundreds of thousands of children under age five.b Denis Halliday, the UN humanitarian coordinator for Iraq, condemned the sanctions. Upon resigning in 1998 after a 34-year career with the United Nations, he described the program in Iraq as "satisfying the definition of genocide."
Why Do States Sign Human Rights Agreements?
are persuaded to do so by contingent rewards provided by others—a form of linkage (see Chapter 2). Established democracies often provide inducements for new democracies to join these regimes, such as financial assistance or the promise of future membership in international organizations, such as NATO, that provide benefits on other dimensions. For instance, as a condition of acceptance into the European Union, countries applying for membership must comply with a host of human rights treaties. Turkey's human rights practices—especially its repression of the Kurds—have been one of the major stumbling blocks in its attempt to join the European Union. By imposing human rights standards as a condition for assistance or membership in international organizations, other states hope to institutionalize democracy in transitional governments. The European Union also hopes to use the threat of expulsion to persuade states to keep their promises, but this method has so far proved ineffective in the case of Hungary, where rights to free expression and, in particular, the right to asylum have been denied under the prime ministry of Viktor Orbán.23 The European Union has so far found little consensus in putting pressure on Hungary to address these issues. , states also ratify international human rights treaties not to bind themselves but to constrain the human rights practices of others. They accept international oversight of their own affairs in order to secure their ability to scrutinize other nations. There are both altruistic and self-interested reasons why individuals and states seek to influence human rights in other countries.
Human rights
are rights possessed by all individuals by virtue of their personhood, regardless of status. Since the end of WWII, a number of important international documents and agreements have expressed support for and enumerated a set of core human rights, beggining with the UnitedNations Charter in 1945.Article 55 states that the UN will promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."
Human Rights
are rights that all individuals possess by virtue of being human, regardless of their status as citizens of particular states or members of a group or organization. These rights are, by definition, universal and apply to all humans equally.
The parallel ICESCR reiterates and affirms:
basic economic, social, and cultural rights of individuals and nations, including the right to earn wages sufficient to support a minimum standard of living and the right to form trade unions and strike. The ICESCR also codified rights to equal pay for equal work; equal opportunity for advancement; paid or otherwise compensated maternity leave; free primary education and accessible schools at all levels; and copyright, patent, and trademark protection for intellectual property. The treaty forbids the exploitation of children and requires all countries to cooperate to end world hunger. Each nation that has ratified this covenant is required to submit reports on its progress in providing for these rights to the secretary-general of the UN. The ICESCR currently has 171 members. The United States signed the covenant in 1977 under President Jimmy Carter, but it has never ratified it because of continuing opposition to provisions that would go substantially beyond existing domestic laws.
Genocide Convention
became the first piece of hard international human rights law. With 152 state parties to the agreement, it is also one of the most widely recognized and supported treaties ever written.4 The United States signed the treaty in 1948 but did not ratify it until 40 years later. Senator William Proxmire (Democrat from Wisconsin), a major supporter, was well known for his speeches in favor of ratification, which he delivered on the Senate floor every day that the body was in session from 1967 to the eventual vote on the treaty in 1986 (for a total of 3,211 speeches).
genocide
by Raphael Lemkin, a Polish lawyer of Jewish descent who immigrated to the United States in 1941, to capture the essence of what happened during the Holocaust. It combines the Greek word genos, for "race" or "people," with the Latin word cidere, "to kill." The Genocide Convention, as the UN initiative is widely known, follows Lemkin closely in defining genocide as "acts committed with the intent to destroy, in whole or part, a national, ethnical, racial or religious group."
ICC
can deter at least the most egregious human rights violations in some circumstances. Both ratification of the ICC and prosecutions by the court have been found to reduce state-sponsored violence, while prosecutions reduce rebel group abuses.45 These findings indicate that the court is deterring some abuses, at least at the margin.
a common tool that states use to punish violators of human rights:
economic sanctions -Human rights are coded as a soft law, rights are themselves objects of political struggle, as they define what is and is not acceptable government behavior toward a nation's own citizens. Countries differ in their views of which rights they are bound to protect and which rights they should seek to enforce when abused by other states. Thus, to account for the politics of international human rights, we must examine not just human rights law but also the interests and interactions of states.
The boomerang effect
employed by TANs also plays an important role in protecting human rights. Victims or other advocates in one country who are blocked from influencing their own states can bring their plight to the attention of concerned others in foreign countries, who can then press their own governments into action against the offending regime. Domestic pressure also explains why democratic states are typically the most important promoters of international human rights. Not only are such rights more consistent with the states' own practices, but these states are also more susceptible to the demands of their citizens to undertake costly efforts to advance human rights abroad.
John Locke
first developed the modern notion of natural rights, the idea that people are by nature free and equal and, therefore, possess certain basic rights that are not contingent on the laws, customs, or beliefs of any particular society or government. This idea then informed the American and French Revolutions, embodied in the famous second sentence of the Declaration of Independence, which states "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Articles 22-26
focus on political, social, and economic equality—a second generation of rights that emerged during the Industrial Revolution and that is often associated with socialist thought. This second generation includes the rights to employment, to an adequate standard of living, to the formation of trade unions, and to education.
The most frequent and deadliest form of violence in the world today is that committed by:
governments against their own citizens (including governments fighting civil wars). In violation of the ICCPR, governments continue to inflict violence against political dissidents. Defying the ICESCR, governments also violate the human rights of their citizens through misguided economic or social policies that lead to widespread suffering and deaths. For example, the Great Leap Forward in China (1958-62) created a nationwide famine and left as many as 38 million people dead. R. J. Rummel coined the word democide to describe such deaths from intentional government-sponsored killings and unintentional government policies. According to political philosopher Thomas Hobbes (1588-1679), states were created to lift humans out of the state of nature in which life was "solitary, poor, nasty, brutish, and short." This statement may be true; we do not know how dangerous life would be without states to provide a measure of social order and protection against other individuals. But today, governments around the world may themselves be the biggest threats to our human rights and, indeed, to our very lives.
Self-Interest Motivations
have self-interests in promoting peace and prosperity, which, in a globalizing world, cannot flourish domestically without flourishing abroad too. Recall that modern human rights originated in the depths of the Great Depression and World War II. Reflecting on the causes of these twin disasters, President Roosevelt and others drew the conclusion that protecting human rights against fascism and other forms of totalitarianism was essential to the maintenance of international peace. By connecting human rights to the epic struggles against totalitarianism that defined much of the twentieth century, Roosevelt laid out the case that promoting human rights abroad was in the self-interest of both Americans and the citizens of other countries. This observation may be no less true today. As the democratic peace discussed in Chapter 4 shows clearly, there is an increasing recognition that democracy and the protection of political freedom can promote peace, economic interdependence, and growth that directly benefit all countries. This is most evident in the labor movements within the United States and Europe, which now demand that human rights (and environmental) clauses be inserted into nearly all regional trade agreements (RTAs).25 The new United States-Mexico-Canada Agreement (USMCA), for instance, includes labor provisions that guarantee the right to bargain collectively and allow expedited review and enforcement of labor rights.26 U.S. and European labor unions promote such clauses to level the political and economic playing fields on which their own workers compete. To protect their ability to organize and strike for higher wages at home, these unions want to ensure that workers in labor-abundant and low-wage countries have similar rights and, indeed, possess the broader political rights necessary to form effective trade unions of their own. In this way, the economic self-interest of developed-country workers can dovetail with the interests of developing-country citizens in more effective protections for human rights.
The ICCPR details the basic rights of:
individuals and nations, defining in sometimes more precise terms the political and civil rights first claimed in the UDHR. The ICCPR affirms the rights to life, liberty, and the freedom of movement; the presumption of innocence; equal standing before the law; legal recourse when rights have been violated; and privacy. In addition, all individuals are guaranteed freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of assembly and association. The covenant forbids torture and inhumane or degrading punishment, slavery and involuntary servitude, and arbitrary arrest and detention. It also prohibits propaganda advocating war or hatred based on race, religion, or national origin. also provides for the right of all people to choose freely whom they will marry and to found a family, and it requires that the duties and obligations of marriage and family be shared equally between partners. It guarantees the rights of children and prohibits discrimination based on race, sex, color, national origin, or language. It restricts the death penalty to the most serious of crimes, guarantees condemned people the right to appeal for commutation to a lesser penalty, and forbids the death penalty entirely for people under 18 years of age.
smart sanctions
limited to specific government leaders and their supporters. Indeed, most U.S. sanctions are now imposed only on specified elites. Targeted sanctions aim to freeze assets that certain individuals hold abroad, prohibit travel, or otherwise penalize leaders for their behavior. The aim is to impose pain only on the regime's supporters, ideally motivating them to change policy to alleviate their own suffering. Even with such smart sanctions, however, it appears difficult to impose sufficient pain on the elite that they will turn against the regime, since they are its primary beneficiaries. It is also hard to limit the effects of sanctions to the elite alone. Even smart sanctions, however carefully designed they may be, will nearly always impose some costs on society as a whole.
Without investigation and publicizing of abuses by human rights organizations:
many more governments would be able to mistreat their citizens, confident that their odious practices would escape international scrutiny. In this issue area, the network of individuals and groups promoting new international norms and pressing their governments to make greater efforts in pursuit of those goals has had a significant effect.
Articles 3-21
of the declaration define a first generation of civil liberties and other rights founded in a Western philosophical and legal tradition that can be traced to the Enlightenment, such as freedom of speech, freedom of association, and equal protection and recognition before the law.
Although there was nearly universal agreement on the UDHR, the attempt to write hard international law protecting human rights got caught, like so many other attempts at cooperation, between the Cold War superpowers. The solution was to write two separate treaties:
one focusing on the civil and political rights of liberty then favored by Western states and the other focusing on the economic, social, and cultural rights of equality and brotherhood supported by the then communist states and others in the developing world. As formal treaties completed in 1966 and in force from 1976, the twin covenants are considered legally binding for all states that have signed them.
amnesties
pardon individuals who committed human rights abuses or other political crimes, typically as part of an effort to put past conflicts to rest and move on. Amnesty was common in Latin American countries transitioning to democracy in the 1980s. Conditional amnesties grant forgiveness to individuals in return for their full and truthful accountings of their role and knowledge of past abuses. One of the most successful conditional amnesty-granting institutions was the South African Truth and Reconciliation Commission, which ran from 1995 to 2002, following the end of apartheid. South Africa's 1993 Interim Constitution laid out the committee's goals, stating that "there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu [the essence of being human] but not for victimization."40 Lustrations frequently accompany conditional amnesties. All amnesties, however, conflict with laws proscribing crimes against humanity, which can be prosecuted internationally, and with the new ICC, which defers to national courts only when a criminal investigation has been carried out in full. The tension between international human rights law and the desire of countries to move beyond the past through transitional justice has not been resolved.
International agreements can improve:
practice.They reach this conclusion either by modeling the selection process directly or by adjusting for the changing standards of human rights over time (see "How Do We Know?" on p. 548). Others find that the effects of international agreements are contingent on or exist only when combined with certain other factors. Agreements "work" in essence only when they are supported by specific domestic political institutions, strong domestic courts and the rule of law, large NGO contingents, the expected tenure of political leaders, and legal standards of proof for particular rights violations. Taken together, this more recent research appears to be gaining the upper hand, indicating that international human rights law is having a positive effect, but in subtle ways and only under certain limited conditions. international human rights law also empowers social actors to conceive of their interests in new ways, provides a shared vocabulary of judgment, and emboldens societies to advocate for their own rights, sometimes leading to massive political change.
ICC involvement in a conflict:
prolongs the strife and killings, especially when the risk of prosecution at home is relatively low. Similar to the gambling-for-resurrection logic explained in Chapter 4, the risk that the leader who loses the conflict will face arrest and prosecution by the ICC creates an incentive to fight on longer than the leader otherwise would.46 We will get a clearer picture of the ICC's effects on human rights as the court develops and investigates more cases.
Governments also violate the human rights of their citizens to:
reserve their own hold on power. This motivation differs from the national security rationale just described. In these cases, the country is not under attack, but governments abuse their political opponents in an effort to suppress internal dissent. That is, to weaken and deter opponents, governments in essence declare war on their own citizens. One of the most egregious cases of such abuse occurred in Argentina following a military coup in March 1976. The country's three-man junta, led by General Jorge Rafael Videla, immediately began a seven-year campaign known as the Dirty War against suspected political dissidents and opponents of the military regime. Some were publicly detained, but many more individuals were "disappeared."
Why Are Human Rights Controversial?
states do not necessarily have the same interests in promoting the same rights to the same extent. States have interests in supporting rights that they already respect domestically and in fighting against new rights that they see as costly to protect. They also have an interest in preserving their own sovereignty, and therefore they may resist the attempted imposition of certain rights within their borders by outside actors. States may also have a strategic interest in promoting rights that their adversaries will deny or find costly to implement. -Many rights are drawn directly from Roosevelt's New Deal Although nearly everyone may agree that some human rights exist in principle, the debate continues over exactly which rights individuals have, underscoring the point that rights are an institution that evolves over time. International human rights are not fixed but are a product of struggle, debate, and social interests.
genocide
the most extreme form of human rights abuse, in which entire identity groups are singled out for systematic persecution and murder. Genocide is one of the most extreme crimes against humanity. The Armenian Genocide in Turkey during World War I and the Holocaust perpetrated by Germany during World War II led to the concept of genocide and modern human rights law. More recently, genocides have occurred in Rwanda (see Chapters 5 and 11); in the former Yugoslavia, where perpetrators of the Srebrenica massacre were prosecuted for the crime; and in Sudan, where former president Omar Hassan al-Bashir has been indicted by the International Criminal Court (ICC) on three counts of genocide, and the ruling transitional military government has agreed to cooperate with the ICC. Recently, the government of Myanmar has been accused of carrying out a genocide against the Rohingya, a Muslim minority largely concentrated near the border with Bangladesh.
The inconsistency of enforcement may make international human rights law comparatively ineffective:
thus, may explain why international human rights treaties appear to have mostly a contingent effect on human rights practices.
The second condition under which states are more likely to act against human rights violators is:
when doing so serves larger geopolitical interests. Raising human rights issues as part of the Helsinki Accords was applauded by many in the West as another way to pressure the Soviet Union and its allies into political and economic reform. Saddam Hussein's human rights record only became an issue in relations between Washington and Baghdad after the Iraqi dictator invaded Kuwait in August 1990, and it later was one of several reasons given by President George W. Bush to depose Hussein in the Iraq War of 2003. Likewise, President Trump might have been more reluctant to punish Syria for using chemical weapons against its own citizens—limited though the missile strike was—if Assad's regime was not aligned with Iran. Raising human rights concerns and demanding policy change in other states can be goals in themselves, but they may also be instruments in larger political and economic struggles.
