A Post-Human Rights Era? A Reappraisal and a Response to Critics

The growing challenges both to international human rights law and to the international legal system as a whole count as old news by now. The sources of these threats are many: the rise in populism and nationalism, the growth in power and assertiveness of both China and Russia, growing income inequality, the election of Donald Trump, Brexit, and so on. Even in this context, however, the past year has been an especially difficult one for human rights. China has now made clear that human rights are part and parcel of its global economic strategy and has set out its own human rights “path” with “Chinese characteristics.” Efforts to enforce global human rights norms through binding international law are less and less likely to succeed. They also come with costs to the international system as a whole.

In 2017, I published an article questioning the relationship between human rights and international law. I now consider how my argument has held up during the past year and in light of Frédéric Mégret’s thoughtful response.

A Post-Human Rights Era

My focus is international human rights law and its relationship to international law as a whole. A variety of legal doctrines designed to transform international law around human rights—including limiting state immunities, a right to secession, a right to democracy, responsibility to protect and others—have generally failed to take hold. Universal jurisdiction, as I noted in 2017, may be a partial exception, and the 2018 airstrikes in Syria—along with the legal defense of humanitarian intervention offered by the United Kingdom—mean that those efforts to transform international law are far from over, although they are in decline. This is not to say that human rights obligations under international law have somehow disappeared, or that human rights have failed on all fronts, or that the human rights movement did not score important victories—and it is a separate issue from regional human rights arrangements or international criminal law. Rather, I argued that the transformative project of international human rights law vis-a-vis international law as a whole, especially the efforts to redefine sovereignty in human rights terms, had not succeeded and that in this sense the “golden age” of international human rights law was over; perhaps long over, perhaps not.

China’s actions over the past year, during which the Chinese government has become newly assertive in the field of human rights, are illustrative. The global competition between China and the U.S. (with other states) is viewed largely in terms of technology and trade, but it also about human rights. In November 2018, China announced a new approach to human rights as part of its participation in the Universal Periodic Review process in the United Nations Human Rights Council (HRC): a “human rights development path” with “Chinese characteristics” that prioritizes the right to development and moves away from the principle of universality, which China had accepted just a few years earlier. Human rights activist Andrea Worden provides a detailed account of China’s new approach in the HRC, including an emphasis on sovereignty, a softening of enforcement measures for civil and political rights, and an underscoring of the “bedrock principle” of sovereign equality and noninterference. These developments provide further evidence that human rights has not succeeded in the larger project of transforming the meaning of sovereignty around human rights obligations.

Along with others, I also questioned the effectiveness of global efforts to enforce international human rights law, including through the HRC. China’s growing assertiveness in human rights creates new problems for the HRC, as Ted Piccone describes in a September 2018 Brookings Institution report. Piccone’s analysis of the HRC describes “seven examples from 2016-18” in which “a pattern emerges illustrating China’s stepped-up activism on its fundamental goals to shield itself and others from criticism and undermine the ability of the international human rights system to monitor and investigate violations.”

China was not successful in many of those examples, and other states continue to strive to make the HRC work. The United States is not among them. It, too, has undermined the effectiveness of the HRC—by withdrawing from it altogether in June 2018. Then-Ambassador Nikki Haley explained at the time that “the Human Rights Council has been a protector of human rights abusers and a cesspool of political bias.”

The problem is not just within the HRC. China’s alarming crackdown on civil liberties continues apace, from the stifling of dissent through imprisonment and worse, to massive data-driven surveillance, to the repression of Muslim minorities. China’s efforts to reorient human rights law around development and to shield itself (and others) from criticism may have global impact. China, Human Rights Watch writes, is “an exporter of human rights violations.” As Yu-Jie Chen concludes, the PRC is:

taking an active role in diminishing the strength of the international human rights regime and presenting China’s experience as an alternative “solution” for other countries to adopt. Beijing is, with confidence as well as caution, seeking to increase its clout in the HRC and more generally in the international human rights system, gradually chipping away the system’s conventional foundation.

As Worden puts it, “in prioritizing ‘the right to development’ as the fundamental human right and implicitly discarding the fundamental principle of the universality, interdependence, and indivisibility of all human rights, China’s ‘path’ poses a serious threat to the international human rights system.” And Piccone concludes:

These efforts are problematic enough on their own. But coming from the world’s most populous country and second-largest economy, with growing leverage over other states, they represent a potential pivot away from 70 years of international efforts to institutionalize human rights as the third pillar of the U.N. system. Chinese investment began to grow during the 2008 financial crisis, and has continued to multiply over the last several years. China invests strategically, particularly with regard to foreign policy considerations. Given this more ambitious grand strategy, which involves promoting the Chinese model across the world, it is likely that China will use its growing economic influence and soft power not only to block criticism of its own and others’ human rights situations, but to spread its desired messages of noninterference and state-led development, with dire consequences for the international human rights order.

To be sure, the West in general, and the U.S. in particular, have an array of human rights problems and violations that they, too, seek to minimize. Likewise, China’s right to development may indeed further important economic and social rights. For here, the point is that China is not going to cede ground on human rights as it gains power in economic and technological terms. The hope that the world would move inexorably toward a civil liberties-based human rights agenda has not been realized. The world is backsliding, not just in terms of many human rights conditions but also in terms of agreement about the agenda at all.

The Costs of Enforcing International Human Rights Law

If human rights are lagging, is the answer to double down on the enforcement of international human rights law? Part of the answer depends on how effective international law is at protecting human rights—a question that has generated decades of debate and to which I will return below.

Lost in that debate is this question: Do human rights have a negative impact on international law itself, making it harder to achieve other objectives through international law? Human rights activists and scholars want to harness the normative and practical force of international “law,” without considering whether doing so makes international law less effective at resolving other problems. Had the human rights movement fully succeeded in its transformative project to redefine sovereignty, for example, it would have been harder to safeguard territorial integrity norms. Kosovo illustrates the point: The West’s use of humanitarian intervention and support for secession purportedly advanced human rights and human security, but it degraded norms of territorial integrity, as Russia’s subsequent actions in Georgia and Ukraine illustrate. (I discussed this in the Boden Lecture at Marquette Law School.) At the time, Russian President Vladimir Putin repeatedly cited Kosovo as legal justification for his actions.

Political science literature now emphasizes the “territorial peace”—the link between territorial disagreements and various forms of armed conflict. The Kosovo example shows how invoking human rights to undercut international norms that protect sovereignty and territorial integrity could have a negative impact on the “long peace” that has prevailed since World War II.

The transformation of international law around human rights has been largely (although not totally) unsuccessful. What, then, is the problem? Frédéric Mégret asks a version of this question in his response to my article, entitled “Having It Both Ways.” Mégret’s important, wide-ranging and highly critical response asks how international human rights law can be both ineffective and threatening. But I see no paradox in describing human rights as past its golden age yet still problematic. Humanitarian intervention illustrates that the transformative project is not fully in the past.

In any event, the weakness of international human rights norms is itself a problem. The core issue lies in describing politicized and underenforced norms as core features of binding international “law.” The sources of international law have been redefined and loosened so that a very large swath of state conduct is now subject to international human rights law, but that law is overlapping, complex and widely disregarded. Even some of international law’s most sacred proscriptions—jus cogens norms—are routinely violated. The difficulty for international law is a version of the “broken windows” problem: Creating a large set of binding legal norms not treated as law weakens the ability of international law to generate compliance. As I wrote in 2017, various approaches to international law, from rational choice to constructivism to sociology and behavior psychology, all suggest that large-scale, persistent violations of some norms make it more difficult to enforce others. Mégret appears to agree that unenforced legal norms might be a problem, but he also notes that other norms of international law might share this difficulty and that people within the human rights movement have also raised them. These points are fully consistent with my analysis.

A better response to the “broken windows” concern is that human rights are distinct from the other international legal norms, so that violations of one do not impact the other. I address that argument in my article. Worth noting here is that human rights itself relies on international law’s general ability to generate compliance to explain why states will be pulled toward compliance with human rights norms when they are made part of international law. In other words, proponents of human rights claim that the normative force of international law will induce compliance with human rights norms, but that lack of compliance with human rights will have no effect on the normative force of international law. That is having it both ways.

What to Do?

Mégret is sanguine. The efforts to transform sovereignty around human rights were always on the margins, he maintains. Humanitarian intervention, Mégret writes, has been “rebuffed by permanent Security Council members and the BRICs,” but he does not discuss recent airstrikes in Syria, the U.K.’s legal position on the topic, or the damage that humanitarian intervention has already done as a legal and practical matter—whether by emboldening Russia to threaten border stability or (after the failure in Libya) making it harder for permanent members of the Security Council to address problems in Syria. International law, he argues, has “remarkable resilience” and “is sturdier than it seems” so that “all of these challenges have served to reinforce rather than undermine it.” I hope so, but Mégret does not convince. He devotes not one word to Ukraine, Russian aggression in both cyber and physical space, U.S. aggression in Iraq and elsewhere, the South China Sea, threats to the global system of trade, the demise of the Intermediate-Range Nuclear Forces (INF) Treaty, the U.S. withdrawal from the Joint Comprehensive Plan of Action, and the repeated warnings from all quarters about global instability and increasing threat of war.

Instead of assuming that the current relationship between human rights and international law is the best way both to generate peace and to protect human rights, a better path would involve questioning both sides of the equation. International law and international institutions could be reoriented around a smaller set of core legal norms designed to prevent war and other threats to peace and security. If the Human Rights Council is a sign of things to come, then the global enforcement of international human rights law will likely be an ongoing and obvious political battle with few benefits for human rights.

There is a vast literature on the effectiveness of various forms of international law in protecting and promoting human rights (for leading examples, see work by Kathryn Sikkink and Beth Simmons). How one reads that literature may well influence one’s evaluation of what should be done going forward—but I do not see the gains for human rights from international human rights law as so clear that it is not worth asking about alternatives. Indeed, because of the historic successes of the human rights movement, human rights norms are today deeply embedded in constitutional and other forms of domestic and regional law in almost every nation around the world. Given the many other ways of protecting human rights—again, partially due to the historic successes of the human rights movement—international law and some global organizations could, going forward, refocus on issues of peace and security, rather than on the (literally) thousands of human rights obligations to which all nations are subject under international law and that are frequently ignored.

Too often, “human rights” are viewed solely as an aspect of international law. But as John Tasioulas argues, “it is deeply misleading to regard human rights as fundamentally matters of (international) law and formal institutions pertaining to its creation, interpretation and enforcement.” Human rights are moral commitments that are sometimes realized through various forms of social organization including law—domestic law, regional law and soft law. To ask whether the enforcement of global norms through binding international law is the best way to protect human rights is thus not to give up on human rights, or even on human rights through law, but is instead to ask about the best ways to use international law. As a resource, after all, international law is not unlimited.