A Global Downturn in Human Rights: Implications for International Law

There is a downturn in civil and political rights in many of the world’s largest and most geopolitically significant countries, especially Russia, China, and Turkey, but also other countries such as Venezuela. These developments have broad potential consequences for international law. In particular, they have implications for: the success of regional human rights treaties and courts; the “right to democracy”; the meaning of sovereignty; and the overall effectiveness of international law.

Beginning with China, the government has centralized military, political, and party power around President Xi Jinping. Authorities have launched a nationwide crackdown on the legal community detaining of lawyers and law associates on charges ranging from “picking quarrels and provoking trouble” to “inciting subversion of state power.” Arbitrary arrest, reprisals, detention and torture are becoming more common, especially for human rights activists, NGOs, journalists, religious leaders, and former political prisoners and their family members. Authorities maintain control of print, broadcast, and electronic media and regularly used them to propagate government views and CCP ideology. For example, the Education Minister Yuan Guiren has banned universities from teaching materials that “promote Western values” or “attack and slander against the Party.” Restrictions on online communications have grown. President Xi has demanded “ideological conformity” and in doing so has made China more repressive than at any time since Tiananmen. One observer summarizes the recent changes as not merely a fluctuation or cyclical change but instead “fundamental shift in ideological and organizational direction that is beginning to influence both China’s reform agenda and its foreign relations.”

The picture is similar in Turkey and Russia. In all three countries, power is being centralized around a strong leader and there is decrease in any outlets for dissenting views critical of the government. Turkey is in a “slide toward authoritarianism” under the leadership of Recep Tayyip Erdogan, and has used anti-terrorism laws to target journalists and academics. Security and military operations against Kurds in southern Turkey have intensified, as have threats against pro-Kurdish politicians and activities. Human rights in Turkey have become a flashpoint for tension between European leaders and Turkey, especially in the wake of an E.U. – Turkey deal on Syrian migrants, which initially appeared to show that European leaders were willing to overlook Turkish human rights violations in return for Turkey’s assistance with migration issues. In Russia, too, President Putin has centralized his own power and repressed dissenting speech from activists, journalists, NGOs and others. One observer has described the “illusion of democracy” in Russia as: “Television channels air newscasts with fancy graphics but follow scripts approved by the Kremlin. Elections are held, but candidates out of favor with the Kremlin are often knocked off the ballot. Courts conduct trials, but the state almost never loses. Parliament meets but only to rubber-stamp Kremlin legislation.”

I consider four implications of these developments for international law.

First, the slide toward authoritarianism in Turkey and Russia calls into question the success of the European Convention and Court of Human Rights for countries that lack close cultural and economic ties as well as a shared overall foreign policy agenda. The point is not so much about specific conflicts between the Court and these two countries – although there are certainly those. Turkey and Russia usually top of the list of violators of European Convention. And in December 2015, Russia passed legislation allowing the Constitutional Court to disregard ECHR judgments if they are inconsistent with the Russian Constitution. To be sure, the United Kingdom has also had its share of conflicts with the ECHR. And although different in effect than the Russian law, the German Constitutional Court has maintained the power to review some aspects of ECHR decisions for their consistency with German constitutional law. The point is more that preventing states from sliding into authoritarianism – and thereby ensuring “greater unity” and “peace” within Europe -- was precisely what the more ambitious understanding of Europe and European human rights institutions were about. Whatever the benefits of broader inclusion, eventually they begin to eat away at the core aims of the project. Note that Britain’s vote to leave the European Union has no immediate impact on its membership in the Council of Europe and the ECHR. They have 47 member states. The European Union has 28. However, questions of European integration are certainly on the table right now as a result of the Brexit vote.

Second, developments in all three countries are also part of a broader downturn in democracy around the world. The decline in democracy undercuts – at least as descriptive matter -- the purported “human right to democracy” in international law. The latest democratic casualty is Venezuela, where the government is cracking down on hungry looters and has been curtailing civil rights generally. The Democratic Charter of the Organization of American States was adopted in 2001, and it calls for the suspension of countries in which the democratic order is interrupted. The OAS has been slow to respond to events in Venezuela, however. Latin American diplomats are concerned the forceful action against Venezuela would not restore democracy. But they also are hesitant to interfere in the internal affairs of other states out of a concern for their sovereignty. That brings me to to third effect on international law.

Third, the general shift away from democracy and civil liberties also undercuts other doctrinal developments in international law. The project of internationalizing human rights has become a project about transforming the very idea of “sovereignty,” which Professor Louis Henkin famously called “That ‘S’ Word.” The claim that sovereignty has been transformed into a doctrine (mostly) about responsibility towards individuals and their well-being has become something like an article of faith in the human rights movement. But Russia and China have not accepted that view – and the positions of Russia and China look less and less like a temporary bump on the road toward global human rights and more and more like long-term world-views that are arguably shared by a growing number of countries, perhaps increasingly even the OAS. The doctrinal implications for international law are substantial. I am working on a longer article on this topic, so stay tuned.

Fourth, the crackdown on dissenting viewpoints complicates efforts to enforce international law. The Russian annexation of Crimea is a good example, as is freedom of navigation in the South China Sea. Without opening up the debate about the Kosovo precedent or about territorial claims in the South China Sea, the point here is that when domestic debate about those issues is shut down, the position of Western governments is less clear to citizens living in Russia and China. As a result, it becomes more costly and more difficult to remedy violations of international law. Despite Western sanctions in response to the annexation of Crimea, for example, Russians have an overwhelmingly positive view of President Putin, especially his ability to handle foreign policy. They also have an increasingly unfavorable view of the West. Indeed, as the European Parliament reports, sanctions are seen by Russians as evidence that Western countries want to “weaken and humiliate” Russia. Ideally, sanctions result in domestic political pressures on a government to change its policies, but a state controlled media makes this very difficult.

The global downturn in democracy and human rights may unfortunately be more than a cyclical development. If so, the effects are likely to be felt across international law.