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Reflecting on international human rights law

The 50th anniversary of the adoption of the Universal Declaration of Human Rights on December 10th this year prompted some reflections and grounds for concern about international human rights law.

The field has long faced legitimacy problems because the bad fit between the fundamental values of particular cultures and the Western-oriented character of human rights law as shown, for example, by efforts to reconcile rule of law concepts with the belief in witchcraft, firmly held, in some parts of Africa. More recently, however, states have become willing to raise what amount to challenges to the legitimacy of regional human rights institutions in which the challenging states have long participated. This happens with respect to particular cases, e.g., Brazil’s rejection of the precautionary measures voted by the Inter-American Commission on Human Rights in the Belo Monte dam matter; Ecuador’s similar action in a matter relating to political dissidents; or the British Parliament’s overwhelming rejection of voting rights for persons confined in prison in defiance of the decision of the European Court of Human Rights in the Hirst case. More fundamentally, states have also sought to clip the wings of human rights bodies, as shown by the adoption of the Brighton Declaration by the states of the Council of Europe in 2012 and the series of amendments to the Rules of Procedure of the Inter-American Commission of Human Rights that Professor Shelton has called “attempts . . . to curtail the functioning and powers of the Commission.” Venezuela’s outright denunciation of the Inter-American Convention on Human Rights does not merely limit the reach of regional human rights institutions; it completely eliminates the authority of the Inter-American Court.

Of course, some of these actions reflect no more than annoyance of a state that is actually violating human rights to be formally labeled a violator by a human rights institution. However, not all of these state reactions can simply be dismissed as wrong-headed evasions of the rule of law. For example, the arguable inconsistency between the judgment in Hirst and that in Scoppola v. Italy justifies questions about the former decision. Further, if one rejects the doctrine that human rights bodies can never be wrong, one has to consider states’ limited options in the face of mistakes by such institutions, given the absence of any clear, workable mechanism for dealing with institutional over-reach in this context.

Beyond these questions regarding the content of human rights law and state questioning of the work of human rights institutions, Professor Engle has noted a difficulty going to the fundamental justification for the existence of this body of law: increasing acceptance of the view that denying impunity to human rights violators is so important a goal that achieving it trumps any other consideration, no matter what the facts of a particular situation. As she points out, it is as though that the whole purpose of human rights law is not preventing future human rights violations, but rather punishing past misdeeds. In effect, proponents of this view would seem to prefer that a conflict continue if the alternative is ending that conflict through an arrangement that includes an amnesty for violators of human rights. It is surely ironic that legal protection of international human rights seems to be seen increasingly as a matter of international criminal law at a time when fundamental questions are being raised about that body of law.

None of this is to deny the importance of the concept of human rights. Indeed, respect for that concept is practically universal, at least on the rhetorical level. China is fiercely opposed to outside interference in its internal affairs, but nonetheless acknowledged a duty to promote and protect human rights in its report to the UN Human Rights Council in 2013. ASEAN adopted a human rights declaration in 2012, not quite twenty years after the Bangkok declaration staked out an Asian position suggesting considerable suspicion of the very idea. Myanmar’s military apparently will abide by the results of a free election, accepting significant limits on its power.

My point, instead, is that these examples suggest that the power of the idea of human rights does not depend on acceptance of international legal standards or on oversight by international or regional bodies. Conversely, there seems to be no inconsistency between the strengthening of the force of the idea of human rights and the weakening of international/regional mechanisms for the enforcement of human rights law.

Featured image: Yosemite Valley, United States. Photo by Mike Petrucci. CC0 via Unsplash. 

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