Search

The Human Rights Agenda Versus National Sovereignty


In today’s world, “human rights” is a powerful slogan, evoking a powerful idea. The same, of course, can be said of other weighty phrases: “liberty and equality”, “democracy and justice”, even the “will of God”. What, precisely, should these abstract terms mean in practice? On this, there is no agreement. Nor is there agreement on the related question of who is empowered to define these concepts.

A compelling answer appears in the founding document of the United States, the Declaration of Independence. The validity of human rights, it proclaims, is a "self-evident" truth: "all men . . . are endowed by their Creator with certain unalienable Rights" and "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." Human rights have a higher source than any government, but in practice, they can only be made "secure" by governments. The "just powers" of government rest, in turn, on a system of consent—some version of constitutional democracy. Nearly half the complaints against British authority listed in the body of the Declaration deal with depredations against the authority of local legislatures and local courts.

For more than 50 years, the United Nations has tried, in one way or another, to serve the goal announced in its Charter of "promoting and encouraging respect for human rights." Yet "promoting and encouraging" are not the same as securing or enforcing rights. Until quite recently, international authority could hardly be described as a serious alternative, let alone a serious threat, to America's founding vision. True, the UN has sponsored a series of international treaties that set forth human rights standards in lengthy lists. These treaties do not include any serious enforcement provisions, however. They do not compel signatories to accept the interpretations of the committees that the UN has appointed to monitor their effectiveness. Nor do they allow the UN to give one state the authority to enforce human rights in another sovereign state. Given the lack of enforcement mechanisms, these treaties have posed no serious threat to any sovereign state, which is why many of the core human rights agreements have been signed by some of the most brutal and repressive regimes in the world.

In recent years, however, the world has begun to move toward arming international human rights advocates with much stronger legal powers. It is much less clear, in this setting, that international human rights norms are compatible with the classic American understanding of human rights. It is even more unclear that the world is ready for the alternative. We may be heading not for a new era of international respect for human rights, but for an exacerbation of conflicts in which the very credibility of human rights is one of the victims.

NEW TRENDS

The end of the cold war, the collapse of communism and disintegration of the Soviet Empire, the expansion of international trade—all generated much optimism in the 1990s about prospects for international cooperation to advance such worthy aims as the protection of human rights. In this context, many people saw the NATO air war against Serbia in the spring of 1999 as a crucial turning point in world affairs. Czech president Vaclav Havel, for example, described the war as a "precedent" for an international law of human rights—“a law that ranks higher than the law which protects the sovereignty of states."

The notable fact about the NATO campaign, however, is that it was launched by NATO on its own initiative and only afterwards approved, to some degree, by the UN Security Council. Even if the Security Council becomes more receptive to the idea of launching wars on behalf of human rights, no one expects that NATO will put its own armies and air forces at the UN's disposal. Nor does anyone expect that the UN will develop independent war-fighting capacities. Real military force is likely to remain the exclusive possession of sovereign states, to be exercised in accordance with complex calculations of national self-interest.

In some ways, the most important innovation occurred earlier, during the conflict over Bosnia. For years, outside powers had deplored the communal violence and "ethnic cleansing" campaigns that followed the breakup of Yugoslavia, especially in Bosnia. Several NATO countries sent troops, under UN sponsorship, but these forces, fearing to get involved in direct combat, did little to protect civilians. In Srbrenica, Dutch troops stood by as Bosnian Muslims were massacred in what the UN itself had proclaimed an internationally protected safe zone. In 1994, the United States and other Western powers responded to such horrors, not by mobilizing more forceful military intervention, but by getting the Security Council to establish a special war crimes tribunal for the former Yugoslavia, with power to indict and try perpetrators of atrocities on its own initiative.

This may not have been a very useful response to the problems on the ground—withholding bombers and sending in lawyers. Nevertheless, the tribunal did mark a genuine change in international human rights policy. This war crimes tribunal, based in The Hague, has often been compared to the Nuremberg Tribunal that tried top Nazi leaders for crimes against humanity. The Nuremberg trials, however, were organized by the four occupying powers in Germany, after the Nazi government’s unconditional surrender. The Allied powers exercised all governing power in Germany, so any courts in Germany would have had to be Allied courts. The Yugoslav tribunal, by contrast, was imposed by the Security Council at a time when the UN did not claim and certainly did not exercise governing power in Yugoslavia. Moreover, it was imposed despite the objections of governments in the region that were still accepted as the lawful representatives of member states in the UN.

As no great power objected to the new tribunal,however, the Security Council plan went forward. A year later, the Security Council responded in a similar way to the massacre of nearly a million Tutsi civilians by the Hutu government of Rwanda. The UN again did nothing to stop the genocide. Indeed, most UN forces in the region were actually withdrawn when the massacres began—to protect European troops from harm. When a Tutsi army ended the carnage by overthrowing the Hutu government, however, the UN again stepped forward—with lawyers. A tribunal was established to try perpetrators of genocide in Rwanda, this time with the full agreement of the new Tutsi government.

Impatience with such ad hoc interventions helped to revive interest in old discussions about a permanent international criminal court. The idea was initially broached in the late 1940s, in connection with the UN's convention on the punishment of genocide (which otherwise leaves the punishment to states where such crimes occur). The project did not seem very practical during the cold war. In the wake of communism’s collapse, though, the idea of a permanent international court was taken more seriously by many of the world’s governments. In 1998, a detailed plan for an international criminal court was drafted at a UN-sponsored conference in Rome. It was supported by well over 100 countries at the conference. The plan called for the establishment of a permanent, independent prosecutor, able to launch investigations and seek indictments on his own initiative and then proceed to trial before a permanent court of judges—again with no direct approval from any national government or any other international body.

Meanwhile, national governments began to get into the act of human rights enforcement. Shortly after the conclusion of the Rome conference, British authorities arrested former Chilean president Augusto Pinochet while he was recovering from back surgery in London. Pinochet was sought by a Spanish magistrate who was determined to try him for crimes committed against Chileans and other nationals during his 17 years as military dictator of Chile. British courts wrangled about the legality of extraditing Pinochet for more than a year before the House of Lords determined that Britain could indeed extradite Pinochet because it could (as British extradition law required) try him for such offenses in Britain. As the Lords saw it, torture had become a universal crime under the 1989 UN Convention Against Torture. The House of Lords held that the traditional immunity to heads of states for their official acts—previously acknowledged by British, American, and most other national courts—had been implicitly overruled by the torture convention. The convention nowhere says that it overrides traditional immunities however, (and nothing in the formal drafting memoranda says this, either), so Chile had had no reason to believe that it was opening itself to such foreign prosecutions when it signed the convention (under Pinochet's own government).

The Pinochet affair was widely heralded as a step toward making good on universal justice. The European Union (EU) parliament applauded Pinochet's arrest, and several other European governments offered to host trials of their own, if Spain decided not to proceed. In the end, British authorities decided that Pinochet should be allowed to return to Chile, ostensibly because he was too sick to stand trial. Still, the precedent now exists, and human rights advocates have urged more such ventures in international justice.

The United States did not endorse the Pinochet trial, but it has offered its own characteristic approach to international justice—the unleashing of tort lawyers. The 1993 Torture Victims Protection Act allows victims to seek civil damages in U.S. courts, even for acts committed by foreign governments, against foreign victims, on foreign soil. Since only individual perpetrators are liable and they can easily shield their assets by removing them from the United States, recovery is quite difficult. Nevertheless, a number of suits have already been advanced (most recently against former Salvadoran army officers now living in Florida), and as precedents accumulate, we may see more ambitious efforts in U.S. courts.

Just over the horizon are proposals to integrate human rights standards into trade agreements, so that countries which commit human rights abuses can be made subject to trade sanctions. Such sanctions are not new, but they have previously been imposed at the discretion of national states. The trade agreements for the World Trade Organization (WTO) do not now allow for such sanctions. Making provision for them would also make such sanctions subject to formal adjudication before the dispute-settling panels and appellate authority of the WTO—which would mean that international adjudication could establish, definitively, which countries should and which should not be considered human rights violators. This would mark a major change in itself.

Taken together, these trends might suggest that the world really is moving toward the establishment of an international legal order in which human rights take a prominent place. This new human rights order faces many obstacles, including some obstacles, however, it ought to face.

AMERICAN RESISTANCE

The first and most obvious obstacle is the unwillingness of the United States to submit to constraints on its sovereignty. America has always behaved with considerable ambivalence toward international norms that would determine the relations between American citizens and their own government. In the early 1950s, prominent legal advocates, including the president of the American Bar Association, insisted that U.S. participation in international human rights conventions would violate limitations implied in the U.S. Constitution. For decades, the Senate refused to ratify any of these conventions. The previous Bush administration managed to secure ratification to four international human rights treaties (on the punishment of genocide, on race discrimination, on torture, and on civil and political rights), but the Senate attached an encompassing set of reservations and understandings in each case, to assure that treaty ratifications would have no direct effect on domestic law.

This situation may now be changing. The Clinton administration took the lead in championing the UN Security Council resolutions establishing the war crimes tribunal for Yugoslavia. Several years later, Clinton's defense secretary, William Cohen, expressed outrage when the tribunal’s prosecutor insisted on interviewing top NATO commanders to determine whether NATO had committed war crimes by targeting civilian sites in its bombing war against Serbia. Yet the Clinton administration had already agreed to such questioning in principle, as the tribunal was given jurisdiction extends to all war crimes in that territory, without regard to nationality. The Clinton administration went even further when it helped to initiate negotiations for a permanent international criminal court. The United States then found itself at odds with most other countries when the treaty made no provision to exempt American military personnel from prosecution by the new court. In one of his last acts as president, Clinton signed the treaty establishing the International Criminal Court (ICC), even as he recommended that the Senate delay ratification pending major changes in the court’s charter.

For many human rights activists, there is a simple answer to the problem of American exceptionalism: the United States must change its policies to keep in step with world opinion. Otherwise, it is said, America will forfeit its position of leadership.

Some advocates—even in the United States—go a step further: they contend that America must change or else the world will force it to change. The very respectable and mainstream journal Foreign Affairs recently published an article by a Hofstra University law professor, Peter Spiro, that seeks to rebut arguments by those who call for greater safeguards of U.S. sovereignty: "Indeed, the [U.S.] Constitution will have to adapt to global requirements sooner or later.... During the twentieth century, the United States was able to defy various international norms only because other countries were unwilling to bear the costs of sanctioning America for its sins; at the same time, international organizations had little power to wield on their own.... But economic globalization will inevitably bring the United States into line." He predicts that other countries will organize boycotts of U.S. products to enforce American compliance with international human rights standards.

It is extremely unlikely that a two-thirds majority of the U.S. Senate will be cowed by such threats. It is far more likely that any serious effort to implement such threats will provoke outrage among most Americans. Most members of Congress would demand that the president respond accordingly. An organized global threat to American independence would seem to justify rather extreme American responses.

In fact, such responses are already being considered. Last spring, Republican leaders in the Senate cosponsored a bill that would have immediately ended all foreign and military aid to any country participating in the new ICC. In the event that any American were held for trial by the court, the bill authorized the president to respond with all means, including force.

If this response seems a bit extreme, the fact is that the ICC "statute" (as the treaty is called) makes it very hard for the United States to sit on the sidelines. The statute not only extends jurisdiction to perpretrators who are nationals of states that ratify the court's charter. It also extends jurisdiction to alleged criminals whose victims belong to ratifying states. Then it goes further and allows nonsignatory states to associate themselves with the ICC for the purpose of offering up a particular accusation, without subjecting themselves to the general oversight of the court in other matters.

This means that U.S. military personnel, whether serving in UN peacekeeping missions or in separate American military efforts, may be subject to the oversight of an international prosecutor. It is true, as advocates of the ICC emphasize, that every country is given the opportunity to undertake its own trials before the ICC would intervene. The statute holds that the ICC is to have the last call, however, so that an American decision not to prosecute, and even an American trial that results in acquittal or conviction on some lesser charge, could be overridden by an international official in The Hague. There has been talk about securing exemptions for American participants in UN peacekeeping ventures. The ICC statute makes no such provision, however: the court is designed to be immune to great power pressures. (The statute allows the Security Council to "suspend" a prosecution for a year at a time, but even such action is subject to great power veto; so Russia or France could stop the United States from invoking this limited safeguard.) If the ICC goes into effect, then the United States might well become more reluctant to participate in UN-sponsored peacekeeping efforts.

Even if the prosecutors of the ICC can be relied upon to exercise restraint toward Americans, the existence of the ICC will almost certainly serve to encourage human rights prosecutions by national courts. The statute, as now written, is not an alternative to, but rather a reinforcement of, Pinochet-style prosecutions. The preamble actually speaks of "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes"—without in any way limiting this "duty" to a state's own nationals or even to crimes committed against its own nationals.

So the United States faces the prospect of a world in which Americans are prey to any foreign government that wants to settle a grievance or score propaganda points by seizing an American and putting him on trial. It need not even be for an offense against the nation conducting the trial. It could simply be for alleged human rights abuses in the United States.

In this regard, the behavior of the EU is far from reassuring. The EU has repeatedly invoked international human rights norms to criticize the United States for its domestic conduct. The EU Commission has particularly condemned the American practice of capital punishment as contrary to international norms. The fact that the United States has not ratified these norms matters not at all (in the European view), since a UN committee has held that these norms have now become obligatory on all states. Germany has now launched a suit in the International Court of Justice, protesting that Arizona has wrongfully executed two Americans for murders committed in that state (the perpetrators were born in Germany but moved to the United States as young children). None of these gestures can force America to change its own laws, but they signal a readiness to see the United States held to international norms when an American does fall into foreign custody.

Many human rights advocates argue that the United States would not only strengthen international standards by cooperating but would be better off for such cooperation. This argument is not likely to convince the American people, who will find it hard to understand why the United States, the world's oldest democracy, cannot be trusted to make decisions for itself without the oversight of countries that—in living memory—were responsible for mass murder and now claim to be special champions of human rights.

Meanwhile, nations friendly to the United States will be subject to the political whims of international opinion. Israel, in particular, will be vulnerable to international prosecutions seeking to make good on European criticism that Israel is overreacting to Palestinian violence. The United States can exercise a veto against one-sided condemnations in the Security Council. It will be unable, however, to prevent the ICC or some bystander state from prosecuting Israeli leaders.

So, if international legal standards are pressed forward, they are likely to trigger sustained American opposition. Will that be good for the cause of international human rights?

A situation where the United States is ranged against the majority of the world’s established democracies is not a promising prospect. It is far from the only problem, however. The world's newest democracies present even greater challenges.

RESISTANCE IN THE LESS DEVELOPED WORLD

For many people, the main appeal of an international human rights regime is its potential for preventing the widespread violation of basic rights in developing countries. It is certainly true that human rights advocates in developing countries often appeal to the moral authority of international norms. Governments that seek to reassure their own people—or the international community—about their commitment to liberalization have often sought to register their good intentions by ratifying international rights treaties. Even China ratified the Covenant on Civil and Political Rights for this reason.

Expressing good intentions, however, is something different from submitting to international authority. The UN has been able to secure at least rhetorical commitment to human rights norms from some of the world's most repressive regimes—at the price of avoiding any threat of serious enforcement. Whether or not that is a sound bargain, it is certainly frustrating to human rights advocacy groups. So now we are moving to more aggressive measures.

The ICC is remarkably aggressive in removing fundamental decisions from national to international hands. Take the case of pardons and amnesties. Every country that has made a transition to democracy has extended some form of amnesty to officials of the old government. With few exceptions, in fact, amnesties have been quite comprehensive and sweeping. Is that wrong? Plainly, advocates of the Pinochet prosecution thought the democratic government in Chile was wrong to uphold the amnesty of Pinochet. The ICC would institutionalize the Pinochet model, as the ICC statute makes no provision at all for respecting amnesties.

The inability to offer amnesty to a previous regime will create serious problems for a developing country trying to recover from a new round of rebellion and repression (or repression followed by successful rebellion). The United States granted general amnesty to Confederate rebels after the Civil War—even to those threatened with capital punishment during the war for massacring black troops. In the 1970s, Spain and Portugal made their transitions from decades of fascist repression without prosecuting those responsible for past abuses, as France and other countries that collaborated with the Nazis had earlier turned a blind eye to most atrocities committed by their own governments during World War II. Why should less developed countries be held to a higher standard?

A reasonable concern is that an outside prosecution will look like the imposition of an outside power; in other words, a return to Western imperialism. This is a serious concern because human rights enforcement is increasingly taking on the character of a new form of imperial rule.

Part of the problem is that the energy for international human rights enforcement is provided not by governments but rather by nongovernmental organizations, and the priorities of NGOs tend to be the priorities of Western activists. Chile's Pinochet was not the bloodiest of dictators, but he received special attention from a Spanish magistrate because the Chilean military government allowed leftist opponents to leave Chile and organize opposition networks in other countries—where they worked to organize exactly the sort of prosecution that was finally launched in Spain.

A larger and more enduring source of energy comes from feminist organizations. They were highly active in UN conferences on population in 1994 and on women's rights in 1995 and provoked much controversy by pressing for international recognition of abortion rights and sexual autonomy rights (especially for homosexual activity). Western countries, urged on by feminist advocacy groups, tended to support these aims. Most developing countries, especially Islamic countries, rejected them. Yet United Nations human rights committees continue to pursue the feminist agenda. The monitoring committee for the Convention on the Elimination of Discrimination Against Women (CEDAW), for example, chided Belarus for instituting a national mother's day (which the committee saw as leading to dangerous sex stereotyping), told the government of Libya to reinterpret the Koran so that its requirements would be "permissible under CEDAW," told the Kyrgyz Republic that it must legalize lesbianism, told China that it must legalize prostitution, and so on.

These admonitions can now be shrugged off as so much unwanted advice from Western busybodies. If the international human rights movement is going to be armed with legal enforcement machinery, however, it is certain to provoke much more opposition. Its feminist priorities will make an easy target for those who denounce human rights as Western impositions.

Developing countries might be more vulnerable to trade sanctions than a major power like the United States. Nevertheless, trade sanctions do not have an impressive record of success. Would WTO–approved trade sanctions actually help to blunt the charge that human rights standards are a Western imposition? Would such sanctions not be more likely to convert the WTO into a target of nationalist resentments? Meanwhile, if globalized trade does help to nurture new constituencies for human rights, is it sensible to make global trade hostage to the demands of advocacy groups?

CONSTITUTIONAL FLAWS

In the end, the American problem and the problem with less developed countries are simply the most obvious illustrations of a general problem. The idea of a world law of human rights implies there is a structure of international authority—a world state of some sort—to enforce this law. Of course, there is nothing of the sort. Rather, we have the odd spectacle of international institutions claiming the authority to lay down the law—without the power to see it through.

Even a domestic court, it is true, depends on executive authorities to enforce its rulings on the ground. In countries where there is some respect for law, executive officials do feel obligated to uphold court rulings. After all, courts are part of the same government and the reputation of the government as a whole is at stake when its courts are defied.

When it comes to international courts, however, no national government has quite the same stake in upholding the court's authority. NATO forces in the Balkans have been notoriously sluggish about apprehending war criminals sought by the special tribunal in The Hague. Had a NATO commander or soldier been indicted, it is extremely unlikely that the United States or any other NATO country would have allowed him to be tried by the tribunal. If the ICC comes into existence and proceeds to issue arrest warrants, how many governments will stir themselves to catch their own nationals or even nationals of states with which they want to stay on good terms?

Ineffectual human rights programs are nothing new in the world. The problem may be more serious when enforcement does "work." Sometimes, as in the Pinochet case, a bystander government may be quite willing to apprehend another country's culprit. What if a prosecution then goes forward against the wishes of the home state?

Even in a domestic setting, there are times when executive authorities feel they cannot leave matters to criminal courts. Almost every country vests a pardoning authority in the executive to deal with cases where prosecution might stir dangerous protest or be viewed by most citizens as unjust. In extreme circumstances, executive authorities may direct police or military forces to disregard contrary court rulings (as President Lincoln did, during the Civil War).

Such measures have the potential to throw a country into turmoil or into lawless military dictatorship. In a democracy, however, there is an ultimate appeal to the people. How much injustice or illegality will a people tolerate to save their country in an hour of emergency or to heal the wounds of former strife? Perhaps it is too facile to suggest such problems can all be settled by plebiscite—though that is, in fact, what happened in a number of Latin American countries in the 1980s, where amnesties for brutal military suppression of left-wing terrorism were approved by popular referenda.

The fact remains that people who inhabit the same country must somehow learn to live together. In new democracies, people have sometimes shown heroic patience and forbearance in accepting former oppressors or violent foes back into their society, as in South Africa and the Baltic states. With all the imperfections of democracy, shouldn't this matter be left to local determination?

What happens, after all, if an outside intervention triggers a new round of civil strife and rebellion? No international court commands its own army. Third party states that undertake a trial do not commit themselves to fixing the consequences. They seek to render judgment from a distance—without any responsibility for the consequences.

This is, perhaps, the deepest problem. When street crime begins to rise or financial swindles proliferate, citizens in a democracy may demand that police and prosecutors step up their responses. Most of the time, though, governments set enforcement priorities without much notice, because the assumption is that the law applies to all and will be generally enforced. This would be an absurd assumption, however, for international human rights standards. No one thinks such standards could be enforced against China or Russia as readily as they might be against Chile or Estonia. No one thinks the scale of human rights abuses is the same in Western Europe as in sub-Saharan Africa.

How, then, does the world set enforcement priorities for human rights? There is no world democracy that can register citizen protest—and then balance that with contending views and competing concerns. At best, we have a chorus of self-selected NGOs, whose priorities may be much influenced by their own ideological fixations or fund-raising opportunities.

So we will have some interventions driven by the agitation of NGOs and then a vast amount of inattention. The idea that an international law of human rights is operating in the background can be a highly effective soporific. To speak of "law" at all in this context suggests that the process is operating on its own. International authorities will take care of the problem. Isn't that why we have them? So national governments, which might make a difference, are off the hook. Problem in Rwanda? The UN has sent lawyers to clean up the mess. On to the next challenge. After a series of feckless international mediation efforts failed to disarm Fouday Sanko’s terrorist forces in Sierre Leone—notorious for amputating the limbs of civilians, including women and children—the United Nations established a third special war crimes tribunal in the fall of 2000. The international community was happy to provide lawyers, but not the long term military protection the country required.

The temptation to fall back on symbolic gestures is particularly great when human rights challenges are framed as the general concern of all nations. During the cold war, the United States was eager to call attention to Soviet repression and the fate of peoples in "captive nations." In the 1980s, the United States took active steps to pressure Latin American dictatorships into moving toward democracy—among other reasons, because the U.S. government wanted to remove the taint of military repression from its anti-Communist coalition.

If we make international institutions the arbiters of respectable government, we pretend that all states are on the same level. The most brutal and repressive are given equal status to the most orderly and democratic. It will be hard to rally respectable states against the brutal ones when we have already determined that the most brutal get an equal say or are, in some ways, full partners in the task of ensuring human rights. Here we have a recipe for neglect on one side and politicized interventions on the other. This takes us back to the problem that there is not, in functional terms, a world community living under a world law.

In the past, advocacy groups have had to rely on the strength of outside governments. Nevertheless, when outside governments acted—whether with diplomatic gestures, economic sanctions, or military threats—they acted as governments. Everyone understood that governments had to weigh a whole series of concerns before deciding how and when to act and how far to press their agendas. If there is "international justice" for human rights offenses, then advocacy groups can go directly to international forums, skipping over the complex calculations of national governments.

Governments may be quite happy to sit on the sidelines—or pretend that they do. Even in the Pinochet case, the Spanish magistrate who launched the case was prodded into action by advocacy groups. The British and Spanish governments then treated the matter as if it were entirely a matter for courts to decide and had no bearing on state-to-state relations between Chile and various European countries. This was, of course, never the case, as the British home secretary ultimately demonstrated by ordering Pinochet returned to Chile based on medical reports that were never submitted to judicial inspection (let alone to challenge by advocacy groups).

No one pretends that governments that act in public and in their own name will always act from disinterested motives. On the contrary, precisely as a matter of self-interest, governments have strong incentives—especially when they do act openly and in their own names—to weigh ends and means, priorities and consequences, in their dealings with other states. Clearly, democratic governments are more accountable to their own people than a private advocacy group can be. Governments are also more accountable to other states, since they have permanent, ongoing relations to protect. Advocacy groups can flit from one "hot" issue to the next, change their focus, even change their names, when things go badly.

Advocacy groups can certainly play a useful role in highlighting injustice, publicizing abuses, inspiring and assisting local protests in other countries. When governments allow advocacy groups to trigger legal mechanisms, however, they abdicate their own responsibilities to these private groups—which have no responsibility for the consequences of their actions. The chaos this can breed is hardly propitious for human rights. In particulr, it may make it harder to develop stable institutions in turbulent regions. If the traditional American view is correct, human rights are best secured by stable, constitutional arrangements. Nations can develop such arrangements for themselves. The world as a whole cannot.

It is, of course, frustrating for human rights advocates to work with a world divided into so many separate sovereign states. Yet this is as it should be. Few people would want to live in a world where a handful of diplomats or lawyers could lay down the law for billions of people, divided into so many different cultures, with such very different circumstances and challenges.

The legalization of human rights standards appeals to many activists who seem to regard it as an international analog to the assertions of judicial authority in the heyday of the U.S. Supreme Court under Chief Justice Earl Warren. Many of those who helped organize Human Rights Watch and other human rights advocacy groups in the past two decades were, in fact, veterans of the American Civil Liberties Union and similar domestic litigation groups. Yet judicial activism was effective in the United States—to the extent that it was—because most Americans, including most government officials, had great respect for their own Constitution and great reserves of loyalty to Court rulings, even if they did not agree with them. It is hard to see how we teach respect for constitutional democracy by establishing a system of free-floating international appeals, hovering above every actual constitutional state.

In particular circumstances, international institutions may help to bring improvements in local situations. Yet they also risk encouraging the sense that national elections and national constitutions are simply formal spectacles, while the world is really run by shadowy networks of well-connected advocacy groups. Such notions can be highly poisonous in new democracies. They may be hard to put down, however, if present trends continue.

Jeremy Rabkin is associate professor of government at Cornell University and the author of Why Sovereignty Matters.

https://freedomhouse.org/report/freedom-world-2001/essay-human-rights-agenda-versus-national-sovereignty


Write to Us:

Advisory Committee: Yves Berthelot (France),  PV Rajagopal (India), Vandana Shiva (India), Oliver de Schutter (Belgium), Mazide N’Diaye (Senegal), Gabriela Monteiro (Brazil), Irakli Kakabadze (Georgia), Anne Pearson (Canada), Liz Theoharis (USA), Sulak Sivaraksa (Thailand), Jagat Basnet (Nepal), Miloon Kothari (India),  Irene Santiago (Philippines), Arsen Kharatyan (Armenia), Margrit Hugentobler (Switzerland), Jill Carr-Harris (Canada/India), Reva Joshee (Canada), Sonia Deotto (Mexico/Italy),Benjamin Joyeux (Geneva/France), Aneesh Thillenkery, Ramesh Sharma, Ran Singh (India)