The Danger of Human Rights Proliferation

by Erik Voeten on July 30, 2013 · 5 comments

in International Relations,Law

Over at Foreign Affairs, Jacob Mchangama and Guglielmo Verdirame argue that international human rights institutions have proliferated to the extent that they have become counter-productive:

If human rights were a currency, its value would be in free fall, thanks to a gross inflation in the number of human rights treaties and nonbinding international instruments adopted by international organizations over the last several decades. These days, this currency is sometimes more likely to buy cover for dictatorships than protection for citizens.

The authors hit on something important although I am not terribly impressed with many of the examples. Yes, we all know that the UN Human Rights Council and its predecessor are and always have been political institutions where countries vote partially based on geopolitical interests rather than sincere interest in improving the human rights of others. Yet, it is not clear that this provides real cover for dictators (although here is a theory how that may work) and there is at least some evidence that even highly political exercises of shaming may exert a sanctioning effect.

They mention that the European Court of Human Rights has gotten into trouble with the United Kingdom. This is accurate but it was over the Court’s interpretation of voting rights and torture; not new fancy rights that are outside of the traditional core of human rights.

Moreover, I think they exaggerate the difference with the past:

Respect for human rights around the world would likely be stronger if human rights law had stuck to a narrower and more clearly defined group of rights.

Go read the 1948 Universal Declaration of Human Rights. It includes a right to “rest and leisure,” a right to “enjoy the arts,” and so on. There has never been a consensus over what should or should not be included in human rights. Rights are almost never clearly defined and are always open to interpretation by political and legal actors.

What is true, of course,  is that many of these rights and others are now embedded in treaties and conventions whose effects are unclear. I don’t think we fully understand if and how this proliferation affects the protection of rights that many people think should have priority. Emilie Hafner-Burton’s new book Making Human Rights a Reality investigates this issue and similarly argues that stakeholders that are willing to put resources into the struggle to improve human rights should set priorities.

I am planning to do a series of posts over the next few weeks based on this book and some other recently published scholarly work that sets out what we know about the effect of international human rights institutions and what lessons we should draw from this knowledge about reforming these institutions. That these institutions are in need of reform is something I think most of us can agree on. The answer to just refocus on “ institutions and treaties that embody the ideals that inspired the human rights movement in the first place” is too simplistic and overly glorifies the past.

{ 5 comments }

Mihai Martoiu Ticu July 30, 2013 at 11:42 am

We should have a World Court of Human Rights, as Australia fought for it for 5 years in the fifties (and rejected by the veto powers), as quite a number of relevant scholars proposed, such as Louis B. Sohn, Hambro, Hersh Lauterpacht, Cançado Trindade, Taslim Olawale Elias, Rosalyn Higgins, Nowak, Scheinin, Ulfstein and others. Yes, I know that I am unrealistic for the time being.

Keinan Meginniss July 30, 2013 at 12:51 pm

Not only is a World Court of Human Rights unrealistic for the time being, I cannot see how it would ever be feasible within the current incarnation of the nation-state. The United States refuses to submit to the ICC, let alone a court that rules on such nebulous concepts as human rights. The entire issue has become so politicized, with nations constantly mud-slinging over rights violations (i.e. China and the United States), that allowing a supranational entity to rule over infractions seems completely beyond the realm of possibility.

If someone can explain how it would be possible to convince countries that are so obsessed with national sovereignty to submit to something like that it would be greatly appreciated. I do not know if I am coming at this from the wrong angle, but I see zero chance of it ever happening.

Mihai Martoiu Ticu July 30, 2013 at 1:29 pm

@Keinan

The ‘nebulosity’ of human rights does not prevent the European, the Inter-American and the African courts of human rights to decide when rights are violated.

And even if some human rights are not precisely defined, it does not follow that one cannot define them more precisely. One can specifically state that pulling off the nails is torture. Or that keeping guys on Guantanamo for 10 years without trial is a violation of the right to fair trial. Or that Russia poisoning guys in London is a violation of the right to life.

Nor is it necessary that the courts should decide on all human rights questions; they could decide on a small collection of violations, for instance of the non-derogable articles in the human rights treaties.

== If someone can explain how it would be possible to convince countries that are so obsessed with national sovereignty to submit to something like that it would be greatly appreciated.==

Firstly, the countries are not obsessed with national sovereignty when they reject international courts. For instance when Australia proposed it, the US rejected the idea because it did not want to give the blacks rights, not because of the sovereignty. The same was the case for the rest of the veto powers. They wanted to violate human rights, rather than being concerned with sovereignty.

Secondly, the European convention gives private individuals the right to sue states since protocol 11, from 1998 (the convention existing since 1953). When the protocol was created scholars predicted that no state would sign it, because of the sovereignty. All 47 member states signed it in no time. Thus the sovereignty does not prevent states to allow individuals to sue them in international courts, nor can we predict what states will or will not sign.

Keinan Meginniss July 30, 2013 at 2:27 pm

I completely agree with your analysis of the real reason for not joining the organizations. I just don’t see how or why the nations would want to end their own abuses, as they would most likely be classified if a court were created, and cede a modicum of power when they instead can continually hide behind reasons not to join. The national sovereignty argument resounds in many countries and I unfortunately don’t see the public turning on that any time soon.

Mihai Martoiu Ticu July 30, 2013 at 2:34 pm

We did not come so far by being realists. Realists never predicted any right at all. William Smith gave the following oration at Charleston in 1796 about the American Constitution: “Among the wonders which no human research can fathom, even in these days, with all the miseries of anarchy before our eyes, there [are] still to be found political speculatists, who deriving their ideas of government from abstract theorems, and estimating man more by what he ought to be, than what he is, [wish] to erect an Utopian constitution on a sandy basis.”

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