Politics of International Human Rights Law Promotion in Western Europe

Order versus Justice

Koldo Casla

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780367189112
• eBook ISBN:
  9780429581472
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

This book offers a critical reinterpretation of Western European States' programmatic support for International Human Rights Law (IHRL) since the 1970s. It examines the systemic or structural constraints inherent to the international legal system and argues that order trumps justice in Western Europe's promotion of international human rights norms.

The book shows that IHRL evolved as a result of a tension between two forces: A European understanding of international society, based on order, the centrality of the State and a minimalist conception of human rights; and a civil society and UN-promoted, mostly Western, particularly European but broader conception of human rights, based on justice. As such, human rights norms emerge and develop when (some) states' idea of order meets with advocates' idea of justice.

We are living a historical juncture of shifting tectonic plates with rising nationalism in the Global North, ever growing power in the Global South and a declining presence of Europe in global affairs. The conditions under which IHRL emerged have fundamentally changed and unpacking the factors beneath the international recognition of human rights has never been more pressing.

This book will be of key interest to scholars, students and practitioners in human rights law, public international law, international relations, critical legal theory and in European politics.

1 Introduction

Why do Western European states promote international human rights norms?

The Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston, led a UN mission to the UK in November 2018. In an attempt to put the significance of the mission in legal context, The Guardian journalist Robert Booth explained:

In 1976 the UK ratified the UN covenant on economic, social and cultural rights agreeing that policy changes in times of economic crisis must not be discriminatory, must mitigate, not increase, inequalities and that disadvantaged people must not be disproportionately affected.¹ (Italics not in the original)

Did it really? Did the UK agree to that? The UK did certainly ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976, precisely the year when the treaty entered into force. However, the human rights-based restrictions on “policy changes in times of economic crisis” – commonly known as the principle of non-retrogression – are a much more recent contribution, no more than one decade old. These principles have not been enshrined in an international treaty subject to states’ formal agreement. They have rather been developed by the independent body that monitors states’ compliance with the ICESCR – namely, the UN Committee on Economic, Social and Cultural Rights (CESCR) – in dialogue with academics, NGOs, other international bodies and, yes, states themselves.

On the other hand, more than 160 countries from all continents have signed up to ICESCR and they have done so in exercise of their national sovereignty. While not formally established in the Covenant, for three decades the CESCR has discussed the national implementation of ICESCR with government officials while shaping the edges of the rights and the obligations derived from the Covenant. Governments have shown variable degrees of good faith and enthusiasm in this process, but they seldom do anything meaningful to resist independent UN bodies’ expansive interpretation of individuals’ rights and governments’ responsibilities. One could reasonably argue that accepting this interpretation is a fair price in exchange of being part of the international human rights regime. But does that mean that the state, legally and politically speaking, agrees to be bound by that interpretation? And, if it does not, why do states set up independent monitoring bodies in the first place?

Let’s take a step back. The 1948 Universal Declaration of Human Rights (UDHR) and the treaties and mechanisms originated from it transformed international law. The UDHR compiled a fairly comprehensive list of the rights drafters could possibly think of at the time. It marked the beginning of international human rights law (IHRL), with international treaties that have been ratified by the vast majority of countries. States’ actions are limited within their national boundaries vis-à-vis not only their citizens but all people under their jurisdiction. With the UDHR, IHRL, and the mechanisms that followed, the individual became a subject in international law. Based on a thorough survey of national legislation and case-law and on the analysis of statements by governments and international bodies, Hannum concluded that “the Declaration represents the only common ground when many states discuss human rights (and) it is the first instrument that should be consulted when attempting to identify the contemporary content of international human rights law”.²

Human rights, of course, were not invented in 1948. But the extension of these rights to everyone on Earth above and beyond national boundaries was something different, something that had not been tried before.

Western European countries played a significant role in making this happen. The European Convention on Human Rights (ECHR) was adopted in 1950, less than two years after the UDHR. It entered into force in 1953 and currently all members of the Council of Europe are party to it. Its judicial body, the European Court of Human Rights, began to work in 1959, and it became the first international human rights judicial mechanism. After “a long and difficult infancy”, the European human rights system experienced a “turning point” in the 1970s, when France ratified the Convention, Italy accepted the Court’s jurisdiction on individual petitions, and the first British cases started to reach the Court.³ To this day, the European Court of Human Rights enjoys a high reputation, which is possibly related to its large workload, the exclusive dedication of the judges, the relatively high level of state compliance, and the politico-legal mechanism of supervision of the execution of judgments. In spite of the noisy political debate, especially in the UK, about the alleged legitimacy deficit of the Court, the system enjoys the support of key stakeholders, including politicians, lawyers, and judges.⁴ European countries have also ratified most of the core human rights treaties.⁵ Latin American and African countries have done so too, but the gap between “rights in principle” (commitment in the form of ratification of human rights treaties) and “rights in practice” (implementation, actual protection of rights) tends to be smaller in Europe.⁶

IHRL is not simply a European story. Small non-Western states contributed to the drafting process of the UDHR and to the first steps of the UN human rights regime.⁷ Decolonised countries were in the forefront of the fight against apartheid and pushed for the adoption of the 1965 Convention on the Elimination of Racial Discrimination,⁸ and a number of non-European countries resorted to human rights to shape their foreign policy statements.⁹ The 1975 Helsinki Accords between the Cold War’s East and West were explicitly grounded on human rights,¹⁰ and President Carter’s programmatic approach to US foreign policy in the late 1970s marked a milestone for international human rights.¹¹ However, historically the US has not supported the cause of the legalisation of human rights,¹² and it is at the very least questionable whether the US has overall been a promoter of human rights internationally.

Be that as it may, to this day no norm has reached an advanced level of development or settlement in IHRL without the support of Western European states. Notwithstanding the differences between Western European countries, the subcontinent as a whole has played a significant role in the legal internationalisation of human rights. Authors tend to agree that the cultural and institutional origins of IHRL are located in Western Europe, or at least in the West.¹³ This is hardly surprising considering the institutional prominence of Western countries in the 20th century.

Geographically and temporarily speaking, the international institutionalisation of human rights is rooted in Europe. However, this does not mean that human rights are necessarily a Western idea. One can accept the European influence in the making of IHRL, but “genealogy is no substitute for moral argument”.¹⁴ More importantly, the genealogical argument does not imply that Western countries have an impeccable record on human rights either. NGOs’ reports and the case-law from Strasbourg give a persuasive account of the opposite. Regardless of the intellectual origins of human rights and of the extent to which governments act according to their promises, Western European countries since the late 1940s have contributed to find a home for human rights in international law.

Why so? Why do Western European countries promote international human rights norms?

One might feel tempted to predicate that European governments are simply representing the will of the people, a majority of which is genuinely committed to global justice – or at least there is no minority significant enough to do anything against it.

This monograph will question this assumption.

As eloquently put by Michael Freeman, “it is politically important that human rights have been codified in international and national law, but it is a mistake to believe that the legalization of human rights takes the concept out of politics” (italics in the original).¹⁵

A number of scholars in law and political science have worked on international norm acceptance and compliance, both from qualitative¹⁶ and quantitative perspectives.¹⁷ These studies have helped make sense of the “decoupling”¹⁸ or “compliance gap”,¹⁹ in other words, of the conditions under which states promise to abide by international human rights norms but then only respect them sometimes and to some extent. However, these studies do not explain why states promote international human rights norms, that is, why they become advocates of the recognition of certain rights in international law.²⁰ The gap between ratification and compliance is noticeable, and so must be the underlying motivation to do one thing and the other, or indeed to encourage others to accept a given norm as a standard of adequate behaviour.

I contend that the lack of critical scrutiny of the reasons why countries promote IHRL is due to the widespread assumption that this area of law represents a genuine normative accomplishment, a globalised zenith of the Enlightenment project. According to this unspoken conjecture, the recognition of human rights would have made international law more humane, less state-centric and more inclined to justice. IHRL is only possible because of states’ prior approval. The reason why some states promote IHRL must be that, after the horrors of the Second World War, governments in Europe and beyond came to believe that humanity needed international law to protect human dignity and freedom.

This supposition is sometimes unambiguous and sometimes hidden between the lines. Steiner, for example, implies that human rights law promotion is the result of constructed identities, and this must be so because the human rights regime does not fit the rational choice model since “these treaties declare ideals of state conduct that no state can fully match, and that tower above most states’ conduct”.²¹ For Morris, norm innovation by great powers must be “motivated by a belief that benefit will accrue to the state and because the values embodied in the norm in question are of intrinsic value” (italics in the original).²² Hannum writes that while human rights can potentially be understood in different ways in different contexts, “the contemporary content of human rights is defined most clearly and most powerfully as law”; the meaning of IHRL therefore must be univocal.²³

The idea that states promote IHRL because they believe in human rights is particularly present in parts of the constructivist literature. Constructivist scholars start from the principle that national identities and interests are constructed over time through interaction, social meaning, and shared ideas.²⁴ States promote certain norms because they identify with them; endorsing IHRL would be a way of articulating their “cosmopolitan creed”.²⁵

According to Finnemore and Sikkink’s f...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of boxes
• Acknowledgements
• Abbreviations
• 1 Introduction: why do Western European states promote international human rights norms?
• 2 Order-versus-Justice: a theory of international human rights norm promotion
• 3 Prohibition of torture
• 4 Justiciability of economic, social, and cultural rights
• 5 Ecocide
• 6 Conclusions
• Bibliography
• Index