Globalizing Human Rights

Emerging Issues and Approaches

Charles Anthony Smith

• Publisher: Taylor & Francis
• Year: 2016
• Print ISBN: 9780415825955
• eBook ISBN: 9781134920945
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This collection presents a comprehensive engagement of issues of human rights in an increasingly globalized world. As the role of the rule of law has moved beyond the confines of the state and beyond the interactions of states, how and when law protects human rights has become a central issue of concern. These essays shed light on both the immediate and the long-term future of a variety of issues located at the intersection of globalized law and the protection of the rights of individuals. Here both top-down mechanisms and bottom-up mechanisms for the fulfilment of human rights are artfully explained. This volume presents frontiers of research in human rights in both substance and approach using a variety of methodologies to engage issues ranging from national court compliance, norm diffusion, and the role of the judiciary in fulfilling human rights to human trafficking, same-sex marriage, and judicial institution building through non-governmental organizations.

This book was published as a special issue of the Journal of Human Rights.

Introduction

 

CHARLES ANTHONY SMITH

 

The eight articles that comprise this special volume of the Journal of Human Rights present a comprehensive engagement of issues of human rights in an increasingly globalized world. The wide spectrum of methodologies and broadly diverse topics covered by these articles are indicative of the maturation of human rights as a topic in the social sciences. Each of these articles was presented at the Interim Meeting of Research Committee 09 (Comparative Courts) of the International Political Science Association held in Irvine, California in July 2011. In “The Globalization of Law: Implications for the Fulfillment of Human Rights,” Alison Brysk and Arturo Jimenez weave together various streams of literature and demonstrate the emerging issues and challenges for the field, largely construed. They provide the path of development of the concept of globalized human rights shaded with the reality of a variety of issues including those of accountability and enforceability. They artfully shed light on the immediate and long-term future of discourse regarding the intersection of globalized law and protection of rights for the individual.

Wayne Sandholtz considers the role played by the interaction of treaties, constitutions, and independent courts in the performance or enhancement of human rights protections in “Treaties, Constitutions, Courts, and Human Rights.” His initial insight is that the way in which treaties and international law generally articulate with domestic legal systems and constitutions makes a difference in the protection of human rights or in the expansion of the protections of human rights. This is a groundbreaking demonstration that in fact treaties can improve the protection of human rights with a clear indication that independence in the domestic judiciary is the mediating variable. This article builds on the emerging “large-N” work in the human rights literature while maintaining a strong connection to the commitment to norms and concerns about protection of human rights that are hallmarks of the more broad human rights literature.

With a thorough analysis of the 27 EU nations and 4 applicant nations, Mary Volcansek and Charles Lockhart seek to isolate the role an independent judiciary might play in the protection of human rights with their article, “Explaining Support for Human Rights Protections: A Judicial Role?” They show that judicial independence per se is not the key to greater protections for human rights. Rather, the dispersal of power—in particular, institutional designs that foster electoral competitiveness and provide for balancing among the branches—is the critical characteristic. In order for the protection of human rights to flourish, the judiciary must not just be independent but also the other branches must not be able to overwhelm the court.

Heather M. Smith-Cannoy and Charles Anthony Smith consider the sincerity of international commitments to combating human trafficking in “Human Trafficking and International Cheap Talk: The Dutch Government and the Island Territories.” They demonstrate that while the Dutch Government often leads the way in the international sphere in combating human trafficking, it has neglected to address the problem in its own territories by a consistent exclusion of the Islands from international protocols and treaties on human trafficking.

In “Judicialization of Politics in Europe: Keeping Pace with Strasbourg,” Michael C. Tolley reveals the strategies used by a variety of national courts to harmonize national law with international human rights law. The article considers recent decisions by the courts in Germany, France, Italy, and the United Kingdom to “keep pace” with the Strasbourg Court (the ECHR). The article explains the dynamics of the judicialization of politics through the lens of domestic court use of international and European principles in resolving claims over asylum and immigration issues. The harmonization of the multiscalar law that shapes asylum and immigration issues, among other human rights issues, leads to an increased role for the judiciary in defining the policy space at stake. The international legal regime provides the inspiration and roadmap for the domestic legal regime. Courts may move farther and faster in areas that build upon extant domestic rights such as those embedded in the domestic constitution.

In “Ideological Voting on Chile’s Constitutional Tribunal: Dissent Coalitions in the Adjudication of Rights,” Royce Carroll and Lydia Tiede consider the impact of the Chilean constitutional reforms of 2005 on judicial behavior at the Chilean Constitutional Tribunal. Using a clever empirical strategy, they consider coalitions in nonunanimous decisions regarding the protection of individual rights and find a regularized voting pattern in dissent that reveals the presence of predictable partisan behavior. They bolster a sophisticated, cutting-edge, econometric methodology with sound doctrinal analysis. They hypothesize that the appointment process has served to mitigate the overt political behavior.

Shawn Schulenberg, in “The Construction and Enactment of Same-Sex Marriage in Argentina,” presents an impressive, field-work driven evaluation of the mechanisms and processes that led to the enactment of same-sex marriage rights in Argentina. The engagement by social movement activists of all three branches of government in the shadow of statutory, but not constitutional, prohibitions made the implementation of marriage equality possible. The article demonstrates that the policy was able to be implemented because first, the community sought the policy and had the organizational capacity to push for it. Second, the activists both pressured and had allies in all three branches of government. Finally, the article suggests that because the Supreme Court signaled it might move toward equality even in the absence of legislative or executive action, the other branches may have had a lower barrier to cross to move toward marriage equality. This article brings together literatures on human rights, legislative processes, and courts to effectively provide a process-tracing explanation for the implementation of same-sex marriage in Argentina.

In “Judicial Institution Builders: NGOs and International Human Rights Courts,” Heidi Nichols Haddad brings nongovernmental organizations (NGOs) into the consideration of the development of global governance through international courts. Using a comparative approach, she reveals that institutional design—in particular “opportunity structures”—accounts for participatory variation. The opportunity structures are functions of the initial conditions under which the international court was established in conjunction with the subsequent domestic support for the court. This article presents an argument that departs from but does not inherently contradict the literature on NGO mobilization. Rather, it fills a lacuna in the literature on the interaction between NGOs and international courts and demonstrates the conditions that lead to variation in these interactions.

We owe a special debt to Rich Hiskes, Editor of the Journal of Human Rights, for his enthusiasm for and commitment to the project. He artfully guided us through the entire process with patience, skill, and insight. We also owe a special thank you to Adam Shniderman and Anne Tatlock for their help and prowess in a range of areas, including citation verification, proofreading, and overall editorial assistance. We also are indebted to Ben Carbonetti for his help in guiding the issue to print. Finally, we are most grateful to the Center for the Study of Democracy at UC, Irvine and its director, Bernie Grofman, for the generous financial support that made both the RC 09/IPSA conference and this special issue possible.

Notes

Charles Anthony Smith (PhD, University of California, San Diego; JD, University of Florida) is assistant professor of political science at the University of California, Irvine. His research interests are in law and politics in international, comparative, and domestic settings. He is the author of The Rise and Fall of War Crimes Trials: From Charles I to Bush II (Cambridge University Press, 2012).

The Globalization of Law: Implications for the Fulfillment of Human Rights

ALISON BRYSK AND ARTURO JIMENEZ

How does the globalization of law, the emergence of multiple and shifting venues of legal accountability, enhance or evade the fulfillment of international human rights? The utility of law for the fulfillment of human rights can be summarized as a combination of normative principles, universal repertoire of definitions and boundaries, links to state enforcement, predictable processes for conflict resolution, and a doctrine of equal standing (Kinley 2009: 215). The intersection between the globalization of law and the globalization of rights is a question of global governance: In what ways and to what extent can and should law across borders regulate and enforce the protection of individuals from abuse of both global and local authority? What does existing literature tell us about where we stand in our understanding of the extent and meaning of these intersecting forms of globalization? There is a rough spectrum from pessimistic structural theories through more optimistic cosmopolitan reformist theories of norm change, with a middle position of a sociological and indeterminate dialectical struggle over the terms and impact of global governance. While we see clear evidence in the international human rights regime of the globalization of norms, definitions, and processes, it is unclear how much the globalization of law has enhanced enforcement or even standing for the fulfillment of core rights of the person.

The globalization of law refers to a linked ensemble of multiple scales, modes, and juridical forms, including (1) global diffusion of norms and processes, (2) multilayered legal pluralism, (3) transnational law governing private cross-border activities, (4) regionalism, and (5) the growing salience of conventional interstate and comparative jurisprudence for domestic practice, such as universal jurisdiction for crimes against humanity. Nonetheless, many argue that state power is still the ultimate enforcer of the rights of the individual, whether the addressee is one’s own state, a transnational entity, or another state transgressing boundaries through war crimes, genocide, or illicit detention.

Since 1945, with the creation of the United Nations (UN) shortly after the end of the Second World War and with the passing by the UN General Assembly of the Universal Declaration of Human Rights (UNDHR) three years thereafter, the world has experienced both the proliferation of human rights law as well as mechanisms for their enforcement. Today, there are seven core international human rights treaties that have been ratified by at least 70 percent of the member states of the UN. One hundred and forty-one states have ratified the Convention on the Prevention and Punishment of the Crime of Genocide; 174 states have ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); 160 states have ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR); 167 states have ratified the International Covenant on Civil and Political Rights (ICCPR); 187 have ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); 149 have ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and 193 have ratified the Convention on the Rights of the Child (CRC). Several of these core human rights treaties have been supplemented by optional protocols specifying further protections. There are also several regional human rights conventions, as well as many more international human rights treaties that have been drafted and begun the process of ratification. In terms of setting new laws in the books, the human rights regime has significantly evolved in recent decades.

With the emergence and expansion of international human rights law, legal processes and mechanisms have followed in an attempt to enforce such protections. Sikkink and Walling (2007) explain that since 1979 there has been an explosion of national truth com-missions and national, foreign, and international human rights trials. Out of 84 new states and/or transitioning democracies from 1979–2004, 63 of them established either a truth commission or a human rights trial illustrating the larger global phenomenon toward individual criminal responsibility and accountability for human rights. Similarly, in the last two decades, there has also been a significant progression in international criminal tribunals. In the spring of 1993, the UN Security Council established the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), the first international tribunal since the Nuremberg and Tokyo Trials. Eighteen months later, the UN also approved the establishment of the International Criminal Tribunal for Rwanda (ICTR). Since then, the international community has also approved several hybrid domestic-international trials, including the Special Panels for Serious Crimes in East Timor, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. Finally, in 1998 with the adoption of the Rome Statute by 120 states, the international community moved to establish the International Criminal Court (ICC), the first permanent international court authorized to charge individuals with war crimes, crimes against humanity, and genocide. As a result of this increase in national, regional, and international human rights jurisprudence, Lutz and Reiger (2009) have emphasized that between 1990–2008 there have been 67 heads of state or government officials from 43 countries from around the world that have been formally charged or indicted with serious criminal offenses (half of which dealt with human rights violations and the other half with corruption), an impressive feat given the less than a handful of such cases prior to 1990.

Meanwhile, international human rights have also become globalized in several over-lapping senses. Human rights norms are increasingly universal via an “overlapping consensus” on core rights of the person. Human rights mechanisms are increasingly cosmopolitan, reaching above, below, and across state sovereignty. And human rights threats are increasingly globalized, either resulting directly from transnational nonstate actors or occurring in areas of limited sovereignty that require some form of cosmopolitan intervention, albeit with debatable bases and implications. Finally, globalization has shifted the repertoire of state responsiveness through the “citizenship gap” in which global power dynamics—from economic exchange to migration—may evade, transcend, or outsource the state’s traditional provision of rights for members via citizenship. Although the notion of human rights has also expanded from physical integrity rights to cover a broad and interconnected set of social, economic, cultural, and collective entitlements, it is most useful to focus our initial discussion on enforcement questions that are most clearly delineated in frontline defense of core rights of the person from acute threats to life and liberty—such as genocide, torture, and forced disappearance.

The intersection between the globalization of law and the globalization of rights is a question of global governance: In what ways and to what extent can and should law across borders regulate and enforce the protection of individuals from abuse of both global and local authority? What does existing literature tell us about where we stand in our understanding of the extent and meaning of these intersecting forms of globalization? There is a rough spectrum from pessimistic structural theories through more optimistic cosmopolitan reformist theories of norm change, with a middle position of a sociological and indeterminate dialectical struggle over the terms and impact of global governance.

Multilateral Human Rights Treaties

The conventional wisdom of international relations realism asserted that international law was a reflection of the power relations of states, and that rights were an epiphenomenal projection of the norms of powerful democratic states at best—and sheer hypocrisy at worst (Waltz 1979; Krasner 1999). Similarly, liberal institutionalists in international relations (Keohane 1984; Keohane and Martin 1995; Goldstein and Keohane 1993) and game-theoretic legal theorists (Goodman and Jinks 2004; Guzman 2008) believe that the globalization of law and rights is real and consequential—but limited. For these cosmo-skeptics, the construction of collaborative and multilevel institutions is functional for the powerful under certain circumstances—and may even take on a life of its own and construct new interests, as has clearly occurred in Europe. Nevertheless, for this school the scope of global law will be limited to coordination dilemmas and governance failures and will be weakly tied to normative universalism. Their conclusions discount the enforcement capacity of universal human rights norms.

Representative of the pessimism of structural theories, Eric Posner (2009: xv) has argued that “it is most definitely not my claim that international law does not exist or does not matter. The argument is instead that international law exists and matters when it serves nation-states’ interests in international cooperation.” Thus, individual states will engage in a cost-benefit calculation where they will weigh the potential gains from abiding with international legal standards against the poten...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• 1. Introduction
• 2. The Globalization of Law: Implications for the Fulfillment of Human Rights
• 3. Treaties, Constitutions, Courts, and Human Rights
• 4. Explaining Support for Human Rights Protections: A Judicial Role?
• 5. Human Trafficking and International Cheap Talk: The Dutch Government and the Island Territories
• 6. Judicialization of Politics in Europe: Keeping Pace with Strasbourg
• 7. Ideological Voting on Chile’s Constitutional Tribunal: Dissent Coalitions in the Adjudication of Rights
• 8. The Construction and Enactment of Same-Sex Marriage in Argentina
• 9. Judicial Institution Builders: NGOs and International Human Rights Courts
• Index