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Challenges to the Global Human Rights Regime

Stephen Hopgood

Are Human Rights Still an Effective Language for Social Change?

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ABSTRACT

The Global Human Rights Regime, an amalgamation of law, permanent institutions, global campaigns and funding, is a remarkable achievement. Since the mid-1980s and particularly after the end of the Cold War, human rights have been embedded in numerous conventions, organizations and courts, at the domestic, regional and international levels, all of which now encircle states in a world of law. Yet, in this article, the author questions how much nowadays the international human rights movement, given its internal diversity, displays a political and moral economy that mirrors inequalities within and between societies more widely? He focuses on three deeper underlying shifts in the world of global politics, namely: the decline of Western influence and the emergence (or re-emergence) of new powers; the politicization of human rights language; and pushback against human rights on principle, particularly in cases of religious belief. Those arguments, the author warns, remind us that the Global Human Rights Regime risks ignoring the complexities derived from diverse regional, national and local politics.

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The profound question of whether human rights are still an effective language for producing social change, asked by SUR 20 on its tenth anniversary, is the right question being asked at the right time. If I answer no in this article—human rights are an increasingly ineffective language for social change—this is a very qualified no. It does not mean that human rights activism has achieved nothing or that we must abandon hope for social change; it does not mean that the language of human rights is no longer useful and it does not mean it will cease to exist. If anything, there will be more talk about human rights. If I suggest that that’s largely all it will be—talk—this is not to say that talk does not have its long term, positive effects, by changing the narrative about who counts as human and how they can legitimately be treated. To be wary of the liberatory potential of human rights in 2014 is simply a reality check in a world that has changed beyond all recognition since the 1970s, when human rights began their global ascent. If we want rapid change, human rights will not be the way to achieve it, I argue. In fact, things are less promising now than they have been for decades. If we want long term change, then the discourse of human rights can still help us, but only if we put front and centre a further SUR 20 question: who is it the international human rights movement represents? Who or what is the Global South?

Why would I—why would anyone—argue that human rights have had their day? After all, the extent of the law and institutions dedicated to human rights is overwhelming. There is hardly a person on the planet, certainly in the North and increasingly through the South as well, who will not encounter the phrase ‘human rights’ on a fairly regular basis, whether in person, on the radio, via satellite television, or on social media. Since the mid-1980s and particularly after the end of the Cold War, human rights have been embedded in numerous conventions, institutions and courts, at the domestic, regional and international levels, all of which now encircle states in a world of law. Building on international covenants on civil and political, and economic, social and cultural rights ratified in the mid 1970s, on conventions on discrimination against women (1981), against torture (1987) and on children’s rights (1989), the UN secretary-general Boutros Boutros Ghali’s Agenda for Peace of 1992 announced a new era where human rights would increasingly impose conditions on legitimate sovereignty. ‘The time of absolute and exclusive sovereignty has passed,’ he declared (UNITED NATIONS, 1992).

Following 1993’s UN Conference on Human Rights in Vienna, the UN’s Office of the High Commissioner of Human Rights was established, followed by the Rome Statute (1998), the International Criminal Court – ICC (2002), the Responsibility to Protect – R2P (2001/2005), the new Human Rights Council (2006) and Universal Periodic Review (2008). There is even a proposal to establish a World Court for Human Rights. These are all significant developments in the law and compliance regime of human rights. Many other agreements and institutions have been set up or revitalized and now almost all of those who seek improvements in their protection and entitlements—from migrants to indigenous people to the disabled to those fighting against female genital mutilation (FGM)—can express their demands in the language of human rights. Even humanitarian relief and development organizations like Oxfam have followed suit. These institutional achievements are mirrored in global surveys that show a majority of the public in countries worldwide support the idea of human rights (POLLS…, 2011).1

Most recently, the UN’s report on the appallingly repressive conditions in which people live in North Korea, released in February 2014, uses human rights and their most far-reaching legalized international expression—crimes against humanity—as the framework for demanding both referral to the ICC and even the use of coercive pressure under the label of R2P (UNITED NATIONS HUMAN RIGHTS, 2014). In other words, far from being an infringement on sovereignty, human rights are seen by their advocates as integral to the exercise of legitimate government. In 2014, human rights are no longer marginal; in other words, they are mainstream. High-profile campaigns—for example to free members of the Russian feminist rock band Pussy Riot—create huge global publicity. Human rights advocacy is now funded to the tune of hundreds of millions of dollars a year and human rights are part of the discourse of humanitarian intervention under R2P. This amalgamation of law, permanent institutions, courts, global campaigns and funding is the Global Human Rights Regime. As political scientist Beth Simmons says, we now have ‘an increasingly dense and potentially more potent set of international rules, institutions, and expectations regarding the protection of individual rights than at any point in human history’ (SIMMONS, 2009, p. 3).

There are, nevertheless, a series of concerns about the present and future of human rights effectiveness shared by scholars and advocates alike. One set of questions concerns current effectiveness. For example, how much impact do human rights campaigns, laws and institutions really have and why is there so little convincing evidence of their positive effects? The ICC has been in operation for 12 years, and has only just convicted its second defendant, and then only on a lesser charge and with a dissenting judge. All ICC indictees so far have been African men and the most prominent, President Uhuru Kenyatta of Kenya, is leading the charge for an African Union breakaway from the court. Even in what we might think is the clearest case—torture—which is against positive, customary and jus cogens law, the evidence for a reduction, let alone elimination, is thin. Some scholars even argue that when states sign conventions like that against torture they are more likely to torture, or to be inventive about the forms of torture they use (HATHAWAY, 2001-2002; REJALI, 2009; FARISS, 2014). We need no reminding of the use of torture by the United States under the President George W Bush administration, of course. What evidence there is suggests, moreover, that human rights work best in societies that need them least (HAFNER-BURTON, 2013). What, then, about the ‘hard cases,’ those in areas of limited statehood where even national governments lack power? (RISSE; ROPP, 2013).

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Pressing questions also concern how much the international human rights movement, if there is such a singular entity, displays a political and moral economy that mirrors inequalities within and between societies more widely? How much are human rights advocates ‘all in it together’? And also: How will changes in demography and technology change human rights work? Do young people really want to campaign for human rights and, if so, is online activism an effective way to do so? Furthermore, will security concerns clash with civil and political rights, and how will social justice demands (to food, shelter, medicine, healthcare) fare if international NGOs continue to prioritize issues like torture, the death penalty, freedom of religious belief and freedom of expression? Will a cutting-edge focus on women’s rights and LGBT rights increase the salience and effectiveness of human rights or will it doom any wider alliance with other social movements, especially those with a religious dimension to them? With a new, more progressive Pope in the Vatican, might the Catholic Church be a better bet for social activism around poverty and social justice than a human rights NGO? What would this mean for the LGBT, and women’s, rights?

While these questions are not new, they are growing greatly in significance because of three deeper underlying shifts in the world of global politics. It is here that we find the real cause of the growing ineffectiveness of human rights as a movement for social change. They are: the decline of Western influence and the emergence (or re-emergence) of new powers, the politicization of human rights language, and pushback against human rights on principle, particularly in cases of religious belief. All these put intense pressure on the idea of an international human rights movement and force us to ask: Who is in this movement and who is not?

First, the decline of the West and the rise of new powers. Human rights came to global prominence in the 1970s in a world where the Soviet model was already stagnating. Initial human rights gains were boosted by the end of the Cold War and nearly two decades of Western dominance, particularly that of the sole remaining superpower, the United States. This was a period, as we have seen, of great innovation in terms of human rights law and institutions. A symmetry existed for much of this period between the dreams of global justice shared by human rights advocates and the goals of US foreign policy—manifest in ad-hoc international criminal tribunals on Bosnia and Rwanda. Although this symmetry barely survived 9/11, core institutions of the Global Human Rights Regime—the International Criminal Court and the Responsibility to Protect—were formally established after the twin towers came down, as was the UN Human Rights Council and Universal Periodic Review. Yet beneath the surface, the distribution of power was already changing.

The United States is slipping, not from its status as preeminent but to one where it is increasingly first among near-equals, or better, near-equal, given it is China that promises to turn the unipolar system into a bipolar one. The importance of American leadership remains pivotal to the success of the Global Human Rights Regime. Even when it explicitly rejected the ICC, the commitment in principle of the United States to global liberal norms was not in doubt (even if the means of realising them were). If this implicit commitment to human rights multilateralism vanishes from American foreign policy goals, no other power has the capacity or will to replace it. To enforce even the idea of minimally universal global human rights norms takes significant power. Recognizing this fact, Human Rights Watch executive director Kenneth Roth recently talked about ‘Obama the disappointment,’ castigating the president for a failure of leadership. Obama lacked resolve and was forsaking American ideals, said Roth (2014). If this is true, as I think it is, then there is no other state that can substitute for US power. And no other state that wants to.

The US still has preponderant military and economic power, of course, but the trend is one of decline, especially in relation to China but also rapidly growing societies like India. Moreover, how usable is this military superiority? In Syria? In Ukraine? Could the United States really confront both Russia and China if their vital interests were at stake? Europe is declining in influence consistently at the UN despite still footing much of the bill (GOWAN, 2012; GOWAN; BRANTNER, 2011). Internally riven, and damaged by the unending EU crisis and the inability to coordinate a meaningful foreign policy, Europe has less and less to offer politically as new powers emerge. Given its ‘pivot’ to Asia, to contain China and grow trade links, and its historical ambivalence about human rights multilateralism, the idea the United States will redouble its efforts to promote human rights worldwide is fanciful to say the least. It has more important economic and security concerns to prioritize now. The Europeans have been the prime movers in decades of international human rights innovation at the global level anyway, particularly over the ICC, but with little prospect that China, the United States, India or Russia will ever join, the apex institution for global human rights actually embeds permanently unequal justice.

This brings us to the second point, politicization. The language of human rights is just too contaminated in many places, as well as suffering from a kind of familiarity and vagueness that makes almost any demand for equal treatment, justice or freedom expressible in rights language, whether or not such a demand is truly justified. For the first time in more than two decades, human rights is being openly rejected in the name of the fundamental organizing principle of world politics: sovereignty. The achievement of numerous emerging and re-emerging powers in at last getting a larger say in world political deliberations is not about to be sacrificed to the dictates of a global governance regime based around sovereignty-infringing rights demands. Brazil’s scepticism about R2P as a mechanism for NATO-led regime change, alongside the fury of its political elite that the United States was hacking the phone calls and emails of the Brazilian President Dilma Rousseff, merely adds Western hypocrisy and untrustworthiness to the list of reasons why human rights language increasingly rings hollow when it emerges from the West. In India, to take another example, human rights are seen as an inherently politicized language because they attack the state and many are sceptical about them for that reason. As Ajaz Ashraf puts it: “The human rights critique alienates many Indians who perceive these activists as unabashedly ‘political,’ rather than ‘charitable’.” They are right; human rights work is political’ (ASHRAF, 2014). But this political stance raises difficult questions of funding and support in a context when rights are not taken to be neutral.

And India and Brazil are states that are more sympathetic to human rights language. China and Russia, in contrast, remain implacably opposed. Perhaps China might sign on to an international language about ‘values’ or ‘a just social order’ but it has been vehemently against human rights language for so long it is unthinkable it will capitulate and adopt it globally. Its growing middle class show few signs that they want to pick up the global human rights banner either. Russia leads the way in direct attacks on human rights organizations and ideas in principle, followed by states as diverse as Sri Lanka, Cambodia, Uganda and Uzbekistan. Saudi Arabia, one of the world’s most systematic human rights abusers, even rejected its Security Council seat using the language of rights while ASEAN’s human rights declaration accepts as legitimate constraints on human rights, ‘national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society’ (ASEAN…, 2012, art. 8). All of which makes a mockery of the legal protections that individual rights are supposed to provide. In other words, human rights language will be acceptable where it is diluted of all significance, and resisted or ignored where it still carries weight. In a Chinese-American world, the language of international norms will need to be transformed into one more tolerable to Beijing than that of human rights. This not capitulation, it is political reality.

03

Third, a different class of ‘hard cases’ (than authoritarian backlash) frequently involves deep seated commitments to social and cultural norms, often backed by religious faith and behaviour, that do not fit neatly into universal human rights boxes. Some are obvious: the Catholic Church and the Muslim Brotherhood together contesting women’s rights at the Commission on the Status of Women in 2013, for example. In terms of LGBT rights, recent setbacks in India, Jamaica and particularly Uganda, let alone in Eastern Europe and Russia, show how little impact decades of human rights work has made to non-discrimination on the basis of sexuality.

Even where there is progress, this may not take place in the way the Global Human Rights Regime expects or prefers (that is, through the law and compliance with it). According to one recent report on Indonesia, for example, while abortion remains technically illegal, it is tolerated both socially and religiously (Islamic authorities are more progressive here than the Catholic Church in the nearby Philippines) (HUNDLEY, 2014). Indonesian politicians are loath to deal with the question by changing the law for fear that they will antagonize people and politicize the issue (thereby hardening positions and eroding the functioning compromise that exists). But many of those who support this de facto pro-abortion status quo do not want to advance what they call ‘Western values,’ a term connoting loose public morals and sexually uninhibited lifestyles. They are determined not to undermine norms of social propriety in Indonesia. This is not a binary Orientalist story of Western secular progress vs. regressive religious beliefs, but one where the assumption that the basket of human rights, liberal freedoms and the relegation of religion to the private sphere all go together is open to question. Where the extension of human rights meets stern resistance, compromise will be the only option. Working with faiths and traditions, rather than against them, will be a necessity. A pivotal issue here is whether the classic modernization hypothesis that development equals secularism turns out to be true in a globalizing world.

Even on deeply emotional topics like female genital mutilation/cutting (FGM/C), the aggressive posture Western advocates take outside Africa is belied by the success of more subtle, long-term and culturally sensitized approaches within many African countries (UNICEF, 2013). Furthermore, evidence of success in the reduction of FGM/C in many cases tells us relatively little about the causal mechanism (which might be increased affluence, urbanization and/or female education rather than anti-FGM advocacy campaigns), and it doesn’t help us tackle the hardest cases, largely associated with rural Islamic communities. Elimination efforts have made little difference in countries like the Sudan for a century. Those whose cultural practices are slated for change cannot be ‘forced to be free,’ they must opt for this version of freedom for themselves.

Why does religion matter so much? Because universal human rights are constitutively secular, I argue. They have as their starting point the moral equality of all human beings regardless of any aspect of their identity. Nothing could be more foundational to the idea of human rights. Religions are not like this. They legitimate themselves according to transcendental or spiritual principles, not human legal constructions, they distinguish between believers and non-believers, they have strong and deeply held views about the sanctity of life, legitimate violence, appropriate social structure and conduct, and they command billions of followers of greater or lesser intensity. Even if religious leaders selectively engage in certain contexts with the demand for specific rights, like against torture or poverty, they are not building the power-base nor the normative foundations of global human rights. They constitute a standing challenge to secular moral and legal authority unless they recognize the superiority of human-made law.

What difference should these arguments make to our understanding of the ambiguous future of human rights? They argue for diversity, variability, what some have called ‘multiple modernities,’ whereby there are various forms of being modern, not all of which are in alignment with the benchmark standards of universal and inalienable human rights (EISENSTADT, 2005; KATZENSTEIN, 2010). The idea of the ‘Global South’ and the ‘Global North’ was an advance on the mere geographical expression South and North. It spoke to persistent inequality even where there was increasing integration of production, trade, finance and labour markets across what were formerly the first, second and third worlds. There was a South in the North (poor migrant workers living on low wages with few protections, no insurance, no job security and no rights) and a North in the South (e.g., a growing Brazilian, Chinese and Indian middle class with disposable income, Western-style consumption patterns, social and geographical mobility, and an interest in the sorts of rights that protect their assets rather than dilute their wealth or influence). Structural transnational inequality is a defining feature of this world everywhere. How will the Global Human Rights Regime help tackle such inequality when it relies on funding and support from the very middle classes which stand to lose most from policies of social justice that would redistribute its economic and political power? The Global Human Rights Regime has hitherto prioritized international criminal justice, not social justice.

Yet these middle classes are also the best hope for social change under a human rights umbrella. In Iran, for example, it is the expanding middle class which is pushing for an end to the death penalty (ERDBRINK, 2014). But such advances will remain context-dependent and national struggles. These human rights campaigns rights have lower case ‘h’ and ‘r’ because they do nothing to fortify the Global Human Rights Regime. They are just one part of a complex domestic political, cultural and social struggle over legitimate state policy and action. The answer will come out differently in different places, as will the language used and the arguments made. All may make use of the umbrella of ‘human rights,’ but they will either be used so loosely as to provide no solace to global advocates, or they will be used so selectively as to undermine in practice the principles of universality and indivisibility.

The use of this language at all is testament of course to the achievements of global human rights advocates in creating laws, norms, courts and awareness. But the Global Human Rights Regime is not synonymous with diverse regional, national and local politics. Here, even if human rights are cited, they may contribute nothing to further the idea of rights universally nor to bolster the foundational claim of human moral equality that underlies them. If the middle classes do not advance human rights in a multilateral way—pushing their governments to observe human rights themselves, adopt human rights foreign policies and support multilateral human rights institutions, as well as joining human rights campaigns themselves—any number of local political engagements that involve the notion of human rights will not embed the Global Human Rights Regime. At a time of declining Western power, more pushback against hypocrisy, new rising and re-emerging powers, authoritarian backlash and the persistence of other highly-valued social norms, there is little to suggest that further progress is on the horizon in the manner to which we have become accustomed. We must all wait it out, through a period of multipolarity and reciprocal, not hierarchical, international relations, to see which language of global norms, if any, will succeed in getting leverage in world politics as a whole.

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Notes

1. For more sceptical data, see James Ron, David Crow and Shannon Golden (2013).

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References

Bibliography and other sources

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Stephen Hopgood

Stephen Hopgood is Professor of International Relations and co-Director of the Centre for the International Politics of Conflict, Rights and Justice (CCRJ) at SOAS, University of London. He is also the Associate Dean for Research in the Faculty of Law and Social Sciences at the same university.  His main area of interest is the international politics of human rights, including the sociology of human rights advocacy. He has written extensively in this area, including the books: The Endtimes of Human Rights (Ithaca, NY: Cornell University Press, 2013), and Keepers of the Flame: Understanding Amnesty International (same publisher, 2006), which won the American Political Science Association Best Book in Human Rights Award in 2007.

Email: Sh18@soas.ac.uk

Received in March 2014.

Original in English.