The contemporary human rights movement tends to be suspicious of states, an attitude institutionalized by two historical events that decisively shaped the movement. The first was the totalitarian statist horrors of Nazi Germany, which led to the beginnings of the international human rights movement. The second was the utilization of human rights as an anti-political rhetoric by Eastern European intellectuals opposed to their Socialist governments. For these dissidents the international legal paradigm was well suited to address the relatively high-capacity states in which they lived. The legacy of these two historical moments has had important unintended consequences, entrenching a view of human rights as embodied in international law for the purpose of checking the behavior of states.
International law assumes that states have the capacity to discharge their sovereign obligations. This is a strong assumption that does not fare well on empirical scrutiny. However, it is also not an assumption that is intrinsic to the concept of human rights.
The tradition of political theory out of which human rights grew did not assume that states were responsible for human rights abuse. The product of a time when modern states were forming in Europe, this older tradition treated the state and its capacity to carry out its sovereign functions as a product of historical processes, varying over time and place. In this view states are a means by which societies regulate the use of violence, creating conditions in which legally enforceable rights could be realized. The state’s capacity to fulfill that role had to be created, not assumed. This older tradition can help ameliorate the theoretical difficulties of contemporary human rights discourse, and more productively locate the relationship between states and rights.
The contemporary human rights movement
The institutions and discourse of the human rights movement emerged from the wreckage of World War II and the liberal reaction to European totalitarianism. During the war Western jurists and intellectuals adopted human rights to fashion a positive, non-Communist discourse for anti-fascism. 1 Thus the founding document of the contemporary human rights movement, the Universal Declaration of Human Rights (UDHR), refers to “barbarous acts which have outraged the conscience of mankind” and promises a world in which the “four freedoms” of Franklin Roosevelt’s famous 1941 address would be realized. 2 Despite falling on hard times during the early part of the Cold War, the utility of the discourse seemed to be proven by its use as an anti-political critique of Eastern European authoritarian regimes in the 1980s.
Its drafters intended the UDHR to be the first step in an international regime for the protection of human rights. Human rights advocates hoped to follow swiftly with a convention that would contain enforceable provisions, making the principles enunciated in the Declaration justiciable under international law. 3
The strategy of advancing rights through international law had two important consequences for the development of the human rights movement: it made human rights state-centric in a way that was unproductive, and it led to a legalistic focus on specific human rights abuses rather than a broader concern with human rights conditions. The unintended consequence was that advocates of justiciable rights ultimately got a treaty regime with weak enforcement mechanisms for sanctioning those abuses. It provided the basis for spreading human rights norms, but few resources for promoting improved human rights conditions.
Human rights discourse became state-centric because the parties to international treaties are sovereign states. Sovereignty by definition means the supreme ability to make and enforce law: in international law there can be no higher power than sovereign states. Because they are sovereign, states have the sole obligation and the sole authority to police their own treaty responsibilities.
There is an intrinsic tension between human rights treaties as instruments for the protection of individuals, but created by states to apply to states. Since states are sovereign they are assumed to bear ultimate responsibility for abuses committed within their territory; unpunished abuses are therefore evidence that a state is not complying with the regime. Even if a state is not actively committing abuses, it is responsible for failing to stop others from doing so.
A legal regime that provided justiciable rights to individuals against states would truly have been revolutionary. Inspired by the Nuremburg trials, which reshaped international law by curtailing sovereign immunity and introduced the new concept of a crime against humanity, justiciable rights may have seemed attainable to some immediately after World War II. In practice, however, the US, USSR and European colonial powers recognized that any enforcement mechanism could be used to embarrass them politically, and opposed any covenant that made rights justiciable. Many other states objected to particular provisions on which they might be vulnerable. 4
States therefore delayed the negotiation of human rights treaties and weakened their enforcement provisions. The original plan for a single covenant making the provisions of the UDHR justiciable broke down completely. It was not until 1965 that the first significantly weakened covenant was open for signature, and another four years before it collected enough signatures to come into force (see Table 1.1). This was the Convention on the Elimination of All Forms of Racial Discrimination, a treaty championed by the newly independent states but not directly connected to the UDHR. The covenant originally conceived to implement the principles laid out in the UDHR was ultimately split into two parts (the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights), because the US, USSR and European colonial states could not agree on its basic provisions. These two treaties were opened for signature in 1966, a full eighteen years after the UDHR, and neither gained enough ratifications to come into force until ten years after that. The Human Rights Commission, originally conceived as an investigative and enforcement body for the covenants, was significantly weakened. The strategy of promoting human rights through international law thus culminated in a system in which the content of that law and its enforcement depended on states, which were unwilling to create a strong regime to police themselves.
Table 1.1 Major human rights treaties
| Treaty | Open for signature | In force |
|
| Convention on the Elimination of All forms of Racial Discrimination | 1965 | 1969 |
| Covenant on Civil and Political Rights | 1966 | 1976 |
| Covenant on Economic, Social and Cultural Rights | 1966 | 1976 |
| Convention on the Elimination of all forms of Discrimination Against Women | 1979 | 1981 |
| Convention Against Torture, and Other | 1984 | 1987 |
| Cruel, Inhuman or Degrading Treatment or Punishment | | |
| Convention on the Rights of the Child | 1989 | 1990 |
| Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families | 1990 | 2003 |
| Convention on the Rights of Persons with Disabilities | 2006 | 2008 |
| Convention for the Protection of All Persons from Enforced Disappearance | 2006 | Not in force |
After the failure of this attempt to bind states to use their sovereign authority in the service of justice, many human rights activists and lawyers began to criticize the concept and practice of sovereignty itself as a key obstacle to effective human rights enforcement. 5 In a strictly legal sense it is true that sovereignty is the problem: sovereign states did choose to strip enforcement mechanisms from the human rights treaty regime, and insisted on retaining control over the application of human rights law. Yet in a deeper sense it is misleading to blame state sovereignty for the lack of progress in human rights: as we shall see, the strongest states which most closely approximate the ideal of sovereign power typically have the best human rights records. It is weaker states where sovereignty is largely fictive that have the worst human rights conditions. The presumption of sovereignty fuses the normative assumption that states ought to prevent abuse with an empirical assumption that they have the capacity to do so. This presumption can head off a deeper analysis of the economic, political and social causes of human rights violations, which can be especially important in relatively weak states.
The international human rights paradigm is best adapted to strong states, which is why it was so effective against relatively high-capacity Eastern European states in the 1980s. The acceptance of the Helsinki Accords by the USSR provided the basis for transnational activism on rights issues, which in the end proved fatal to the Eastern European Communist regimes. It empowered networks of activists to expose the gap between their governments’ legal commitments and actual practice. For the strategy to work, states already had to have a considerable commitment to the rule of law, which led to a corresponding expectation on the part of their populations. These commitments and expectations can only be taken seriously in relatively high-capacity states. 6
This brings us to the second consequence of addressing human rights through international law: as a legal regime, the treaties focus on human rights abuse rather than human rights conditions. Modeled on legal procedures, they generally seek to prevent abuses by enumerating a set of prohibited behaviors, and then requiring states to identify and sanction abusers.
Yet the precise responsibility for human rights abuse can be difficult to establish. If a government official commits an abuse, for instance, it is not always clear if this was done under orders or as an abuse of authority. If an abuse of authority goes unpunished, it is often not clear whether this is because senior officials secretly approve, or because of incompetence at preventing, detecting or punishing abuse. Similarly, if a private citizen commits an abuse without being punished, it is often unclear whether the government is complicit and should carry the blame for having failed to prevent the abuse.
The emphasis on particular human rights violations tends to work best when dealing with cases of political repression. Repression is a form of communicative action: its essence is the threat that if one challenges the government one will suffer, and the threat must be clear and credible to work. Yet the legalistic model of abuse is less helpful for many other sorts of human rights, where responsibility might be more diffuse. For instance, poor conditions for economic and social rights are often due to complex economic, political and social factors that cannot be easily traced to particular actors. While it is well established that governments can influence economic conditions, it is far from clear that low levels of economic development constitute human rights abuse in the legal sense, even where they can be concretely tied to poorly chosen economic policies. Similarly, conditions for social rights and women’s rights are influenced by cultural and social prejudices and practices. Governments can legislate about such issues and may be able to gain traction on issues under their immediate control, but forcing massive cultural and social change has proven beyond the capacities of even the most effective states. 7
The legal approach thus implicitly privileges some rights over others. Politically motivated abuses that fit comfortably into a model of legal responsibility are the most easily recognized. Violations of rights that are more difficult to fit into that model, such as economic and social rights, tend to get short shrift.
Shifting the focus to human rights conditions makes it possible to expand the range and depth of the analysis. Human rights conditions refer to the broader social, economic and political factors that tend to prevent or encourage human rights abuse. While it might seem less satisfying than “getting the bad guys,” this approach has advantages. It avoids unanswerable questions about the motivations of individuals and encourages a deeper examination of the root causes of abuse. It does not automatically blame the state, making it less intrinsically confrontational, and allows ...
