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2 - Marriage of Futility

International Law and Human Rights

Published online by Cambridge University Press:  02 December 2021

Abdullahi Ahmed An-Naim
Affiliation:
Emory University, Atlanta

Summary

Legal enforcement of international obligations under domestic law is a contradiction in terms because the same state that has the conclusive obligation to protect human rights also has exclusive control of the means of legal enforcement under domestic law. The impulse for the state to obstruct or hinder the domestic enforcement of its international obligations under routine trade and international relations is effectively precluded by fear of retaliation by other states and/or international organizations that have the power and resources to secure their economic, trade, security, and other interests under international law. Unfortunately, human rights treaties are unlikely to have similar benefits for states when they implement or enforce the treaty or international custom on which a human rights claim is based.1

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2021

Introduction

Legal enforcement of international obligations under domestic law is a contradiction in terms because the same state that has the conclusive obligation to protect human rights also has exclusive control of the means of legal enforcement under domestic law. The impulse for the state to obstruct or hinder the domestic enforcement of its international obligations under routine trade and international relations is effectively precluded by fear of retaliation by other states and/or international organizations that have the power and resources to secure their economic, trade, security, and other interests under international law. Unfortunately, human rights treaties are unlikely to have similar benefits for states when they implement or enforce the treaty or international custom on which a human rights claim is based.Footnote 1

Consider the supreme hypocrisy of the “human rights policy” of the United States, which not only refuses to ratify the most fundamental human rights treaties, but also ensures that the few treaties it ratifies cannot possibly introduce any element of international human rights standards or accountability in the United States itself. The ultimate irony is that the United States monitors the “human rights record” of every country in the world, except itself, to be recorded in the annual reports from the State Department to Congress.Footnote 2 None of this is motivated by the desire to serve humanitarian goals, but only to support the pretense of global moral leadership to justify the imperial policy and coercive so-called humanitarian intervention at the exclusive discretion of the United States in advancing its own foreign policy objectives. All former colonial powers, including Russia, engage in such manipulative practices, but I am singling out the United States because of its combination of minimal ratification of human rights, emptying the few treaties it ratifies of all meaningful human rights content, and highly effective propaganda claiming the exclusive role of the United States as the global guardian of human rights.

Specialized treaties and their specific enforcement mechanisms promise advanced and sophisticated rights but fail to deliver on those promises. Moreover, the liberal bias of Western societies against social and economic rights or collective/group rights means that they will not cooperate when approached about legal enforcement of these rights in their own countries. For instance, since liberal states refuse to accept a right to education or health care as human rights, they will refuse the legal enforcement of such rights in their countries. Liberal states will also probably seek to generate a counter discourse to disrupt legal obligations to cooperation in enforcement even among societies that have expressed their wish to accept education and health care as human rights.

The subordination of international law to the domestic legal system of nation-states is too entrenched in the nature and functions of the state itself to be avoided. This requirement includes the incorporation of treaty provisions into the domestic law of the state by statute in common law jurisdictions like all former British colonies, including the United States. Other countries may take other routes for incorporation of treaties into domestic codification or judicial traditions or political institutions of the country in question.Footnote 3 Regardless of the means of “domestication” of international law, the outcome of the application of human rights treaties will become domestic civil rights instead of international human rights law. In ratifying a human rights treaty, the state will probably modify and adapt the interpretation of the treaty to fit its political and legal systems and institutional governance, in addition to insisting on reservations limiting the state’s obligations under the treaty. This combination of limitations of domestic application of international law can be illustrated by the case of torture in the United States.

This curious consequence can be explained as follows. The rationale of human rights is that they are supposed to be the universal rights of all human beings by virtue of their humanity – regardless of whether the state where they happen to be living is willing or able to protect them. The apparent source of the belief that rights should be protected against the state itself was the then (mid-1940s)-recent experience of the Holocaust as a massive and horrendous example of the brutality of which the nation-state is capable. To provide for the entitlements of all human beings by virtue of their humanity, instead of being limited to only the right of citizens and lawful residents, the system was established and continues to operate through the presumed authority of an external frame of reference of treaties and customary international law. The system is also implemented and promoted through the institutional authorities of international organizations, such as the UN and World Trade Organization, presumably beyond the domestic control of any state. What is paradoxical is that despite the bold vision and ambitious plans, control of the protection of human rights – and of the concept of human rights, which was to protect human beings against the state in the first place – was left to the state.

The predominance of states over the entire human rights field is supported by the framework of international law under which only states can have rights and obligations.Footnote 4 Unfortunately, the structural system of international law is not mature enough to accept possibilities of making exceptions or allowances for human rights issues, like the possibility of different subjects for variety of content or context. Only states can sue or be sued before international tribunals or seek arbitration to adjudicate disagreements with other states. Only states can be parties to treaties or members of international organizations. Moreover, only states that are members of the relevant international organization can approve or object to admission of other states to the same treaties or membership of international organizations.Footnote 5 Therefore, according to the current structure of international law, only states can be subjects of violations of international law because only they have rights that can be violated by states and other entities. These rights include those under international human rights law. Consequently, they have the exclusive claim to seek remedy for violations of their “human” rights, without delegation to the state of legal agency by the human subject of the right. This exclusive ability of states to hold rights under international human rights law means that they can block actual human beings whose rights have been violated from seeking remedy, including appropriate conceptions of self-determination. The inherent nature and rationale of the right to self-determination, including the definition and practice of the right, cannot be held hostage to the narrow conception of self-determination as defined by colonial powers. This is the rationale of liberating the concept of “right” in the term “human rights” from the control of liberal relativism of colonial powers. Unfortunately, the liberal relativism of human rights discourse continues in neocolonial power politics up to the present.Footnote 6

The title of this chapter indicates the apparent mismatch between universality of human rights and sovereignty of the state, but that need not be the case if sovereignty is defined as subject to the protection of human rights by the state itself or collaboration among equally sovereign states.Footnote 7 Yet, the inclusion of the protection of human rights in our understanding of sovereignty will reduce the tension in the paradox of self-regulation by the state. In this book I am arguing that the combination of cultural transformation and political mobilization is in fact the logical and pragmatic alternative to the paradox of universality of human rights and sovereignty of the state. Otherwise, actors in the name of the state can easily manipulate the mechanisms and processes of international law to rationalize or justify violating the rights of individuals and communities.

Reference to “communities” here and elsewhere in this book is to indicate the possibility, even priority in appropriate context, of collective human rights of communities. For example, Article 19 of the African Charter of Human and Peoples Rights of 1981 provides: “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.” Article 20 affirms that all peoples shall have the right to a general satisfactory environment favorable to their development. According to Article 22, “All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.” Other collective rights are stipulated in Articles 20 to 24 of the African Charter. My reference to communities here and elsewhere is also to affirm that rights of individuals are exercised in community with others.

Proponents of liberal relativism would argue that human rights should be confined to rights of individual persons since collective rights are impossible to enforce in a court of law. In fact, human rights of individual persons are also impossible to enforce in a court of law beyond the sovereignty of the state against which the human right violation is charged. Any “enforcement” requires the authority and power of the state to achieve effective enforcement against the will of the state and in opposition to other economic and political forces in the country. The quality of being a human right is lost when an entitlement or protection is incorporated into domestic law for the national courts to enforce it. Enforcement by domestic courts negates the quality of universality, thereby defining the right as domestic, not universal. This is true of every conception of right, whether liberal, communitarian, or otherwise. The difference between liberal and other conception of rights is that a liberal conception is manipulated by former colonial powers to demonize and look down on developing countries and their values and cultures as relativist, incapable of yielding a universal right, although liberal rights are also relative to liberalism, and incapable of yielding a universal right.

It is ironic that a commonly held view of the universality of human rights is that it is necessary to challenge the ability of states to violate the rights of their citizens and other persons under their jurisdiction. In other words, proponents of an international framework for human rights often claim that it is necessary to hold states that violate the rights of persons under their sovereignty accountable. Yet, the entire human rights paradigm is firmly embedded within the sovereign jurisdiction of states. State authorities decide whether to ratify human rights treaties, and whether these are subject to reservations that state representatives select. Moreover, state authorities decide when and how to incorporate human rights and other treaties that they ratify into their domestic jurisdiction.

The arbitrary and exclusive manner by which France, the United Kingdom, the United States, and the Soviet Union forged their alliance during World War II is one relevant framework for my analysis. The sequence and rationale that led each of those powers to enter the war are crucial factors. The Soviet Union was initially “neutral,” then cooperated with Germany against the UK and France, before ending the war allied with the British and French. The Western allies developed their plans for “governing” the postwar world while fighting the final phases of the war. The United Nations was officially established when China, France, the Soviet Union, the UK, and the United States ratified the UN Charter. These major powers designed the structure and organization of the UN Charter to ensure the consent of all permanent members of the Security Council, including China, to any amendment of the UN Charter and prior approval of critical operations of its organs.Footnote 8 For example, states are admitted to membership in the UN by decision of the General Assembly upon the recommendation of the Security Council. Note that any one of the five permanent members of the Security Council can block any nonprocedural decision of the Council, including the admission of any NEW member of the UN or subsequent annual accreditation of representatives of existing members of the UN applying to be seated in the UN itself or in any of its specialized agencies.

The process of developing the UN Charter resulted from complex negotiations, which could not have been anticipated. The same was true for the structure of the UN itself and its specialized agencies. The UN system could have been achieved without the consent of those five major powers, especially the United States and the Soviet Union. Yet, the process and its outcomes, including the adoption of major human rights covenants and conventions,Footnote 9 was achieved by negotiations among UN members to safeguard and protect the diplomatic and political interests of the five permanent members of the Security Council and their allies. There was nothing romantic or magical about advancing the interests of the major powers and other alliances of member states of the UN. At the same time, all the issues in dispute were settled by negotiations at the beginning or subsequent stages of development of each of the UN subsystems. The human rights system was also negotiated in similar manner at around the same time.

The mismatch of International Law and International Human Rights is so problematic that it is unlikely that the major colonial powers (France, the UK, the United States, and the Soviet Union) would submit to an alternative system that limits their powers and position in the UN. Western colonial powers designed the human rights regime to fit their own liberal relativism so that they could use it to consolidate their postcolonial control over their former colonies. In its current iteration, this human rights regime does not hold them accountable to the structure that they established under the United Nations. As I have explained elsewhere:

By liberal relativism I mean the set of values and institutions which limit human rights to negative claims on the state to refrain from interfering with the freedom of individuals. This perspective upholds civil and political rights of citizens, pays lip service to notions of inclusive universality of human rights, and relegates economic and social rights and collective demands for development and protection of the environment to the realm of second and third generation rights. In this model, judicially enforceable negative civil and political rights are true rights, while affirmative claims on the state for economic and social justice are deemed incidental outcomes of upholding true rights.

This view is relativist because it is premised on a particular philosophical view and political experience. It is neocolonial because it projects that relativist view as universal through imperial hegemony, economic blackmail and the constant implicit threat of use of military force at the discretion of the same former colonial powers, while “international” finance and the U.S.-backed loan businesses make it impossible for “developing” countries to realize socio-economic and cultural rights. The liberal scenario is paradoxical because it negates self-determination of poor countries in the name of protecting their human rights. The point here is not whether a claim deserves recognition as a human right or not, but the imperialist coercive nature of the process that refuses to consider the possibility of a non-liberal perspective.Footnote 10

Officially Marxist regimes which ruled the Soviet Union and their Marxist East European allies during the Cold War (approximately 1949–1990) insisted on calling their regimes “democratic,” although they were all harshly totalitarian in practice. Still, all those regimes adopted the same human rights approach that prevailed in democratic Western European and North American states. Nonetheless, the human rights regime that has prevailed since the adoption of the UDHR in 1948 still applies today without the presumed universality of human rights and its alleged benefits. The imperial policies and brutal repression that the liberal Western powers continued to practice in their colonies and new dependencies provide evidence of this legacy.

For example, France insisted on maintaining its colonial stronghold in Algeria and other colonies in north and west Africa. France also continued its colonial war in Indochina until the colony (and the war) was taken over by the United States. Britain held on to its African colonies, including Kenya and Nigeria, until the early 1960s.Footnote 11 Western European colonial ambitions still shape political and economic developments in Africa and Asia. The United States continues to dominate the Western Hemisphere, while implementing interventionist policies in Africa and southeast Asia. In view of these global hegemonic geopolitical relations, it is reasonable to conclude that former colonial states are assuming global leadership in human rights without acting accordingly.Footnote 12

Squaring the Circle

The international human rights regime was not preconceived as a process of an integrated and comprehensive system. Its core structure and processes came to be organized in terms of a global regime centered around the United Nations, on the one hand, and the three regional systems of the Council of Europe and Inter-American and African regional treaties, on the other. I begin by identifying the sources of human rights law and examine the projected process of protection to see whether this system can deliver on its alleged promise. I also examine whether the system can be truly universal and inclusive of all human civilizations and traditions or merely impose liberal relativist claims of human rights while dismissing non-Western societies as “cultural relativist.”

To summarize the “sources” of international human rights norms, we should first note that norms evolved and were reinforced under customary international law. Examples include prohibition of slavery and torture. The problem with this source of human rights norms is that customary international law relevant to human rights norms is rather vague or scarce. This is true of customary international law in general. In practice, evidence of customary international law is not only ambiguous and subjective, but the sources that international tribunals turn to for proof of customary law tend to be from Western scholarship in Western languages. Moreover, as to be expected, they often address issues that are relevant to the interests and experiences of Western powers.Footnote 13 While the charge of liberal relativism is damning enough for international law at large, it is devastating for the legitimacy and integrity of the universality of human rights.

Ironically, liberal proponents of human rights have used the Western liberal hegemony to proclaim a wide range of so-called human rights standards through international treaties. Unfortunately, the massive expansion of the scale and scope of human rights treaties in the UN system and regional systemsFootnote 14 has come at the expense of effective protection of human subjects of the proclaimed rights. By listing major treaties, I am highlighting the vast scope and highly ambitious nature of the range of human rights included. These aspirations contrast starkly with the few rights that are realistically identified for enforcement or application. In addition, the UN system also includes Optional Protocols relevant to some of the major treaties. States party to those treaties have the discretion to ratify related protocols if they choose. Therefore, by creating Optional Protocols, states can supplement and reinforce the provisions of main treaties among those states that have ratified them. The regional human rights systems, namely the European Convention on Human Rights 1950, American Convention on Human Rights 1979, and the African Convention on Human and Peoples Rights 1981, follow the same approach of main treaties and specialized optional protocols. The protocols tend to focus on specific subjects, such as the involvement of children in armed conflicts, trafficking of children, and pornography. Some optional protocols grant individual persons the right to complaint procedures under select major treaties. The practical weakness of this massive system of human rights instrument is the tendency to cite enactment of legislation as if it is an accurate representation of practice. Ironically, lack of practical implementation comes in adverse correlation to the number of treaties and protocols adopted in the same field, as if numbers of adopted instruments make up for the lack of practical efficacy.

The basic problem with the current international law of treaties is that it was designed and evolved to regulate economic, political, and security relations among the states of Western Europe and former colonies settled by European immigrants in the Americas and Australia, who remained allied to their “metropolitan European country,” such as the UK, France, and Spain. In these and related ways, the development of Eurocentric international law tended to follow its European roots by applying primarily among regions that are either matched in economic and military power or share common political and cultural history. The so-called international community was an exclusive club of Western states,Footnote 15 which also controlled membership in the club for non-European states seeking to join. That structural barrier kept non-Western states of the nineteenth century, such as the Ottoman Empire and Japan, out of the exclusive group of the “civilized nations” of Europe (and “civilized by association” among descendants of European settlers abroad) until the twentieth century, despite the established practical sovereignty and economic and military power of both the Ottoman Empire and Japan at the time.

Article 38.1.c of the Statute of the International Court of Justice (ICJ) provides that the sources of international law for the ICJ include “c. the general principles of law recognized by civilized nations …”Footnote 16 Consequently, this article makes the history of the exclusive club of so-called civilized nations particularly problematic. The Statute of the Court does not define the criteria of what constitutes a “civilized nation” or set an assessment process by which to judge the capacity of a state to be civilized enough to sanction general principles of law. For instance, should the ICJ declare that a state is civilized enough for the purposes of Article 38.1.c, does this mean that state is forever considered “civilized”? How about states that lack the quality of being civilized? Can they ever qualify in the future, and how (and by whom) is their admission to the club evaluated?

Other difficulties with Article 38 of the Statute of the ICJ include the fact that states cannot sue or be sued before the ICJ without their explicit consent, and the rulings of the Court are binding only on consenting states or when so decreed by the UN Security Council. Yet, international lawyers and arbiters tend to treat the rulings and dicta of the ICJ as binding as if they were judicial precedents in common law jurisdictions. While this does not preclude parties and their lawyers from arguing that general principles of law from any state or group of states can contribute or not contribute to the formation of a general principle of law in any other case, the ICJ may choose to uphold general principles of law from established jurisprudence of Article 38.1.c of the ICJ Statute. In any case, there are no independent criteria for deciding which is the correct view of the law beyond the instance of the case before the ICJ or any arbitration panel.

Sources of international law and their outcomes tend to be conservative because the principles of international law often draw on preexisting state practice. For example, the formation of customary international law requires consistent practice by states out of a sense of obligation. As the Supreme Court of the United States described the process of “ripening” of practice into a rule of international law: “By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law …”Footnote 17 This subjective element of circular logic of state practice out of a sense of obligation in the formation of the customary law rule that gives that sense of obligation has been described by the International Court of Justice as follows: “The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or eventual character of the acts is not in itself enough.”Footnote 18

The imperial policies of Western liberal powers who designed the UN human rights regime sought to combine a liberal relativist view of human rights and their lack of effective remedies. As such, it is clear that they deliberately entrusted the protection of human rights to international law to keep the human rights initiative under the control of former colonial powers. Military conquest was legal under Eurocentric international law, which also regulated European colonial expansion through schemes like the Berlin Conference of 1885–1886, which carved up African territories among colonial European powers. Eurocentric international law also sanctioned the expansion of colonial rule throughout Africa until well after the establishment of the United Nations in 1945. As noted earlier, France and the UK, two of the Permanent Members of the Security Council, insisted on holding on to some of their African colonies until the early 1960s–1962 for France (Algeria) and 1963 for the UK (Kenya). Other European colonial powers, such as Portugal, fought vicious wars against independence movements in their African colonies in the 1970s.

It is worth considering what the founders of the UN human rights regime could have used as an alternative. First, the concept and scope of the human rights paradigm was too novel to be applied within the mundane framework of state sovereignty and exclusive territorial jurisdiction under traditional international law. Yet, these founders should have pursued an alternative approach to state-centric legality. To stay within that traditional framework is to negate the innovative value of the human rights paradigm, which applies an external standard to judge the domestic conduct of nation-states. Second, the former colonial powers who founded the human rights regime in 1945 could not conceive of a genuine alternative to traditional international law. They were too invested in the jurisprudence of European notions of state sovereignty and “justiciable rights” to seriously consider any alternative framework that the rest of world could share. The inherent liberal relativism of leading international/human rights scholars of the time is clearly illustrated by Hersch Lauterpacht’s authoritative 1945 book on the international bill of human rights. He focuses his justification of human rights exclusively on Western scholars and ideas and principles, ranging from Roman law and Medieval thought to the Enlightenment and modern philosophy and scholars. He does not offer references to any scholar or source from outside Europe or North America.Footnote 19

The problem of recognition of new states and acknowledgment of their competence and capacity as independent sovereign entities reflects the inherently discretionary and tentative nature of international law on this subject. On the one hand, other states have a profoundly strong yet ambiguous concern in the ability of an emerging state to conduct its international relations, honor all varieties of its treaty obligations, etc. On the other hand, Western states created the present Eurocentric system and made themselves the oldest members and “gatekeepers” for the admission of new members to the club. At one end of the spectrum, the former colonial powers, the oldest, economically and militarily best established, most experienced in inter-state trade and geopolitics, used to be able to keep their control over the process and its outcomes. At the other end of the spectrum the medium capacity states, established by European settlers who aspired to lead former colonial states in Africa and Asia while themselves being ruled by the former colonial class, wanted to establish a treaty-based system for state recognition. The Latin American “declaratory approach,” providing that a state achieves sovereignty by declaring itself “sovereign,” was codified in the Montevideo (Uruguay) Convention of 1933. The United States signed the Convention but did not complete the ratification process. In contrast, west European states, including all former colonial powers, kept the “constitutive view” of recognition by other states as contributing to constituting the new state.

While each of the two approaches (constitutive and declaratory) has its pros and cons, the difficulty lies in the inconclusive outcome of the process of confirming sovereignty under international law. Since the choice of approach, selection and verification of relevant facts, and evaluation of counterarguments are all decided by the tribunal or arbitration panel agreed to by the state in dispute and the common law principle of binding precedent does not apply, it is not possible to predict even an approximate outcome of international disputes involving determination of sovereignty or its impact on subsequent relations among relevant states. There is also the relevance of the significant discretion exercised by the tribunal or panel of arbiters. The operation of conflicting interests and demands among concerned states within the underlying paradox of self-declaration (significant examples range from the United States of America in 1776 to Israel in 1948) versus recognition by preexisting sovereign states.Footnote 20

Similar strategies and outcomes can be seen in debates about the ranking of categories of rights within the UN in the context of the Cold War. Creators of the human rights regime gave civil and political rights precedence over economic, social, and cultural rights.Footnote 21 The UDHR allowed for several economic, social, and cultural rights in Articles 22 to 26, but the liberal relativism of Western powers relegated those rights to the weaker of these two Covenants.Footnote 22

Consequently, the human rights that are most relevant and urgently needed by people of the Global South were relegated to an inferior status. This was because, in the eyes of the human rights regime founders, economic and social rights or collective right to development lacked the true quality of liberal rights of being enforceable by a domestic court of law. As countries in the Global South became sovereign independent states, they sought to reject liberal values as definitive sources of universal human rights. Liberal values are suited for societies that share those values, but cannot be imposed or assumed to apply everywhere without regard to indigenous cultural values in other parts of the world. relativism cannot motivate most people of the Global South to struggle for the realization of liberal conceptions of rights. Western states and their societies have so far denied the obvious conclusion that the liberal notion of a right is not universal to most human communities. By acknowledging this conclusion and acting accordingly, most societies around the world can promote their local view of universality, separate from liberal relativism. Here is a brief explanation and support for this view.

The Human Rights Commission of the UN initially proposed the adoption of a single Bill of Rights for all human rights in the form of a single covenant, but adherence of Western delegates to the liberal view of rights resulted in the adoption of the approach of two separate covenants. The Covenant on Civil and Political Rights uses stronger language in defining its set of rights as immediate obligations of the state.Footnote 23 Article 2.1 of this Covenant provides that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, …” In contrast, Article 2.1 of the Economic, Social, and Cultural Covenant provides that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

I use the term “so-called” to describe each set of rights to protest the concept and criteria of hierarchy of rights, whereby economic, social, and cultural rights are as much human rights as any of the so-called civil and political rights. The rights to healthcare and education, for instance, are as much human rights as the rights to freedom of expression and freedom from torture. Moreover, freedom of expression is severely diminished by a lack of education, while the value of education rises in proportion to the importance of issues for public debate. For instance, since the right to education is essential for the sound practice of democratic self-governance, this means that the right to education is foundational to all human rights and fundamental freedoms.

The main reason for dividing human rights as defined in the UDHR between two Covenants is that economic, social, and cultural rights were seen by delegations of Western states as outcomes of protecting civil and political rights rather than as independent human rights. The liberal view among Western state members of the UN, which dominated the drafting and early development of the field of human rights, rejected the inclusion of economic, social, and cultural rights in the exclusive membership of “true” human rights. There are two aspects of liberal definition of civil and political rights. The first aspect is that they are negative, requiring the state to refrain from interfering with the right. In ideological and tactical terms, the dichotomy of rights was useful in the context of the Cold War to undermine the alliance between Soviet and postcolonial states. As Ziauddin Sardar explained: “If the discourse on human rights is confined to civil and political rights, it will be much easier to put governments in the South [developing countries] on trial for alleged violations of freedom of expression or freedom of assembly.”Footnote 24

The second aspect of civil and political rights is that they are justiciable, i.e., they can be enforced by a court of law. Since economic, social, and cultural rights are proactive in the sense of requiring the state to allocate resources for health care and education, for instance, that is requiring the state to provide the rights, as opposed to requiring the state to refrain from interfering with enjoyment of the right by citizens and lawful residents. My main objection to imposing a liberal definition of human rights is for the benefit of those who do not share this view. Liberal relativism is not only defining rights for liberals, but also blocking the right of other people to define human rights for themselves. The common standard of human rights is that they are all universal, meaning they are due every human being by virtue of his or her humanity. Self-determination is at the core of the humanity of human beings, whereby all persons can decide within their communities which view of human rights they wish to accept and practice.

“If the discourse on human rights is confined to civil and political rights, it will be much easier to put governments in the South [developing countries] on trial for alleged violations of freedom of expression or freedom of assembly.”Footnote 25 It is further argued by Western societies that civil and political rights are relatively inexpensive because these rights compel states to abstain from infringing upon an individual’s integrity and freedom. Additionally, implementation of civil and political rights is made immediate due to its nature of only addressing and regulating state behavior.

Since economic, social, and cultural rights consist of a positive obligation on states to provide adequate welfare to their citizens, opposition to these rights is often rooted in the argument that they require a greater or extensive pool of resources to implement and achieve them. Furthermore, Western values see “economic and social justice as a threat to free market values.”Footnote 26 Western opposition to economic, social, and cultural rights is also fixated in hypocrisy as seen in US human rights policies. For example, when the UDHR was signed in 1948, “Jim Crow laws enforcing racial segregation were constitutional in the United States,”Footnote 27 despite the costs and other liabilities of enforcing those laws.

It is a mistake to separate civil and political rights from economic, social, and cultural rights because “there is an inextricable relationship between socio-economic development, democracy, culture and human rights.”Footnote 28 In order to be effective and successfully implement economic, social, and cultural rights, international human rights law must surpass Western models of liberalism and Eurocentric ideals to address economic injustices and neocolonial efforts that are often disguised as humanitarian aid or enforcement of human rights.

The Supreme Hypocrisy of US Human Rights Policy

With all due respect, “supreme hypocrisy” is the only accurate description I can honestly offer for the human rights policy of the United States. In common ethical discourse, hypocrisy is behavior that is contrary to what is claimed to be believed or felt, such as when a morally responsible agent (in this case the United States) freely engages in certain conduct while condemning others for the same conduct. The negative implications for the human rights paradigm are compounded when the United States cites the failure of poor countries to protect human rights in their domestic practice as a reason for penalizing them in their economic relations with the United States. Any state may of course adopt whatever human rights policy it chooses, but such inconsistencies in the United States’ foreign relations have serious negative implications in the policy field in question. The accurate application of this morally negative description to such a highly developed society and powerful state diminishes the moral standing and political weight of the human rights paradigm. In other words, since the United States aggressively promotes itself as the primary founder and champion of human rights on a global scale, its failure to live up to such claims will lead others to conclude that the problem is with human rights policies, instead of seeing the problem as a consequence of the United States’ hypocrisy.

The main elements used by the United States to characterize its human rights policy – as commonly described by all levels of officialdom, media, practitioners, advocates, and other public policy leaders of this supreme hypocrisy – include the following:
  1. (1) assertions that the United States has been the primary founding authority on modern human rights since the Second World War;

  2. (2) a tenacious determination to participate most vigorously in every negotiation for the drafting of international human rights treaties when it is widely known that the United States Congress will either refuse to ratify any multilateral human rights treaty or request so many reservations, declarations, and “understandings” on the language that the few treaties the country does ratify are effectively emptied of all meaningful content;

  3. (3) constant assertions that upholding and protecting universal standards of human rights are one of the primary motivations of the United States’ foreign policy.

I will now highlight some of the features and consequences of the United States’ human rights policy and its drastic consequences for the global integrity and viability of the universality of human rights. I will first begin with a brief review of relevant provisions of the 1969 Vienna Convention on the Law of Treaties, which is a codification of traditional principles of customary international law and other sources. For example, the full text of Article 19 of the Vienna Convention on the Law of Treaties provides that:

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
  1. (1) the reservation is prohibited by the treaty;

  2. (2) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

  3. (3) in cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.Footnote 29

By permitting reservations “unless,” Article 19 is listing only three exceptions to, or limitations on, the permissibility of reservations.

Article 27 on Internal law and observance of treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.Footnote 30

According to Article II, section 2 of the United States Constitution, the president “shall have Power, by and with the Advice and Consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” If two-thirds of the Senate approve a treaty submitted by the President for ratification, then the final assent on the text of the treaty will still be subject to reservations imposed by the Senate.

The next several pages of this section of text is a direct quotation from the official statement of the US government at its “ratification” of the Torture Convention. I am quoting the exact text of the US reservations, etc., on the Torture Convention because it is absolutely incredible that the government that produced this also claims global leadership in the protection of human rights through its moral grandstanding and constant and massive propaganda of self-promotion. I am engaging in this unusual degree of direct quotation to avoid the risk of my evidence or analysis being dismissed as gross misrepresentation or exaggerated assertions. What I am directly quoting here is the exact official text of the reservations, understandings, etc., asserted by the US government in ratifying the Torture Convention, especially the scope and magnitude of reservations and other means of precluding accountability by the USA. Since I have called this section “The Supreme Hypocrisy of US Human Rights Policy,” I am relying on direct quotations and minimal analysis to avoid the risk of error or exaggeration.

  1. I. The Senate’s advice and consent is subject to the following reservations:

    1. (1) That the United States considers itself bound by the obligation under Article 16 to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

    2. (2) That pursuant to Article 30(2) the United States declares that it does not consider itself bound by Article 30(1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.

  2. II. The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

      1. (a) That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

      2. (b) That the United States understands that the definition of torture in Article 1 is intended to apply only to acts directed against persons in the offender’s custody or physical control.

      3. (c) That with reference to Article 1 of the Convention, the United States understands that “sanctions” includes judicially imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.

      4. (d) That with reference to Article 1 of the Convention, the United States understands that the term “acquiescence” requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

      5. (e) That with reference to Article 1 of the Convention, the United States understands that noncompliance with applicable legal procedural standards does not per se constitute torture.

    1. (2) That the United States understands the phrase, “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” as used in Article 3 of the Convention, to mean “if it is more likely than not that he would be tortured.”

    2. (3) That it is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.

    3. (4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

    4. (5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10–14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

  3. III. The Senate’s advice and consent is subject to the following declarations:

    1. (1) That the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing (i.e. cannot be applied by American courts without specific legislation incorporating the treaty into Federal American law.)

    2. (2) That the United States declares, pursuant to Article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. It is the understanding of the United States that, pursuant to the above-mentioned article, such communications shall be accepted and processed only if they come from a State Party which has made a similar declaration.

  4. IV. The Senate’s advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President:

    The President of the United States shall not deposit the instrument of ratification until such time as he has notified all present and prospective ratifying parties to this Convention that nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.Footnote 31

**************************

To conclude this strong condemnation of US human rights policy, and to avoid misunderstanding, I am NOT asserting that the United States has no respect for its obligations under international law in general. Instead, I am asserting that there is a fundamental moral and political failure in the US position on international human rights treaties. Of course, current international law entitles every state to freely participate or totally abstain from ratifying any human rights or other type of treaty. The United States is also freely entitled to refuse to ratify any human rights treaty, but it cannot pretend to subscribe to the human rights core values. It is not enough to condemn the supreme hypocrisy of US human rights policy, while still enabling the country to escape accountability for manipulating the human rights paradigm to advance its own foreign policy interests. Such global failure of accountability on both sides indicates the low significance given human rights values by various states in their international relations.

From Magnificent Promise to Inevitable Failure

In this section I will briefly highlight the magnificent promises of two major human rights treaties in order to show how the failure of those promises was inevitable because of the inherent inability of international law to protect the rights of human beings who are victim to violations of those rights. At a basic level, the language and concepts of the law of treaties are intended to determine the rights and obligations of states, instead of those of individual human beings who are subject to the jurisdiction of those states. Such failure is inevitable because treaties are agreements or contracts between states, whereby states are supposed to fulfill their obligations through the exercise of their sovereignty and free volition, though in the realities of differential power relations among states. The assumptions of sovereignty and free volition should include the obligation of states to protect persons who are subject to their jurisdiction according to their treaty obligations. The law of treaties is part of the fundamental structure of principles of responsibility to respect the rights of other states and their subjects, and vice versa, under traditional international law.

The assumption of international law in general is that such exchange of rights and responsibilities among states will somehow result in the protection of all persons who are subject to the jurisdiction of all states concerned. Unfortunately, the fatal defect of this assumption of equal sovereignty and motivation to cooperate is that it requires enforcement by an independent personnel in a credible process, yet the concept, content, and context of international law itself is designed to avoid having to hold any state bound by a determination or ruling without the consent of the state in question. Mediation or adjudication among states is always caught in the paradox of assumption of equal sovereignty, on the one hand, and the reality of differential power relations in a minefield of alliances and complex history of conflict, on the other. The only entity against which a state is free to exercise its sovereignty without worrying about serious consequences is its own population, individual or communal. The assumption is that the victim’s state always has the discretion – not the obligation – to assert the rights of its citizen against the transgressor state, subject to pragmatic considerations about the costs and benefits of confronting the other state in question, whether friend or foe.

This fundamental principle of international law may be easier to comprehend when seen, for instance, as a matter of international trade, defense, boundaries, or rights to offshore oil rather than the human rights of the citizens and lawful residents of a state. A core problem of human rights law is that states have no incentive to seek application or act on behalf of citizens whose rights have been violated by states. Take, for example, a scenario in which state X received credible information that officials of state Y tortured V, who is a citizen of state X. In such a case, which is not uncommon, state X may opt not to pursue the issue with state Y because there is no pressure on state X from powerful political or strategic interests. State X might also refrain from acting on behalf of citizen V against state Y out of concern that to do so could jeopardize its economic or security interests with state Y, or be counterproductive for V’s community who live in state X.

The language of human rights treaties requires “protection” of the human subject. In practice, no mechanism of protection exists that can prevent a person or community from being harmed. Moreover, the proponent of remedy or redress for violation of liberal rights must wait until the harm occurs. This response often appears in a piecemeal, disjointed manner. From the start, the concept and norms of international human rights in the UN and regional systems were incapable of legal enforcement. This was due to the state’s inability to coercively prevent human rights violations against its human subjects. The paradox here is that if human rights are protected (prevented from occurring) by the territorial (nation) state, then a state simply needs to enforce the civil and criminal law of its jurisdiction. This enforcement occurs regardless of the existence of so-called human rights treaties or whether the state has ratified or incorporated those treaties into its domestic law. If the rights are protected by the intervention of other states, then this enforcement mechanism constitutes a violation of the sovereignty and territorial integrity of the state where the harm occurred.

The claim that the cause of human rights around the world will be promoted and effectuated if humanity can rise to the challenge of protecting a uniform set of human rights is not true of any part of the world, including Europe and North America. Unfortunately, this is unlikely because the costs will probably be too high even for the most developed states of western Europe and North America. A more serious objection to this claim is that its application, if possible, will reduce the distinctive feature of universality of human rights as the entitlement of every human being by virtue of his or her humanity and without distinction. The population of each region prefers protections for those rights which they accept as human rights due to philosophical, religious, sociological, political, or other justifications. Moreover, there is no significance to evaluating compliance with what people in any region accept as human rights according to the UDHR or any other so-called international standard. Instead, it is what people in their communities hold as humane or civilized that matters, and not what any other region or organization upholds as the standard of judgment or evaluation. Expectation of universality as uniformity is degrading to human persons and communities that are held to this combination of standards, even when the claim is made by members of the community in question.

The present human rights system also assumes the cooperation of privileged native elites who control states, inter-governmental institutions, and civil society organizations. These individuals define and implement the international human rights system on their terms. They can also evade responsibility for violating, or enabling others to violate, human rights. This authority indicates that the drafting and practice of the human rights system is much more complex and politically charged than one would imagine. The present system of self-reporting by states only exposes the propaganda of governments, international institutions, and transnational organizations. These publications also reveal how deceptive and manipulative the use of the term “human rights” is in daily practice. Ultimately, the current global and regional human rights systems were neither established by, nor do they continue to be implemented by, neutral professionals who were, then or now, capable of working with complete neutrality or impartiality in defining or implementing universal human rights norms equally and fairly to all human beings.

Hopgood’s vision for an alternative to the global human rights regime is that because religious, nationalist, ethnic, and family structures are located much closer to people and integrated within their everyday needs and identities, such structures may be better able to create “sustainable reciprocity-based and socially reinforced norms that reduce suffering, even if they fail to deliver on the promise of global liberal norms.”Footnote 32 He advocates a “syncretic, political, ground-up process of mobilization.” He acknowledges that such a process may not prevent mass atrocities, but he points out that the global human rights paradigm has failed in that endeavor as well. When he explains the issues in such terms, I find my position closer to his than when both of our positions are colonized by liberal relativism.

Footnotes

1 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. International Court of Justice (ICJ), May 28, 1951.

2 The main State Department report is Country Reports on Human Rights Practices, which covers human rights as proclaimed in the UDHR and other international agreements. The US Department of State submits reports on all countries receiving assistance and all United Nations member states to the US Congress in accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974. See also International Religious Freedom Reports; Trafficking-in-Person Reports; and US Treaty Reports.

3 Janis, International Law, pp. 1–8. For actual sources of international law used by different states see, Gaebler and Shea (eds.), Sources of State Practice.

4 The following brief outline of aspects of the same structural principles of general international law of rights and obligations of the state. Janis, International Law, pp. 263–69.

5 Such as the United Nations (UN) itself – the most global and complex institution – and the Organization of American States (OAS), the European Union (EU), and the African Union (AU). Only states can be members of any of these organizations, or of specialized agencies of international organizations, such as the World Health Organization (WHO), World Trade Organization (WTO), and World Labor Organization (WLO).

6 Orford, Reading Humanitarian Intervention, pp. 126–56.

7 Deng et al., Sovereignty as Responsibility; and Chayes and Chayes, The New Sovereignty.

8 US Department of State, Office of the Historian, “Milestones: 1937–1945.”

9 Such as the Convention on the Elimination of All Forms of Racial Discrimination (1965); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social, and Cultural Rights (1966); Convention on the Elimination of All Forms of Discrimination Against Women (1979); Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment (1984); Convention on the Rights of the Child (1989); International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families (1990); Convention on the Rights of Persons with Disabilities (2006); International Convention for the Protection of All Persons From Enforced Disappearances (2006).

10 An-Naim, “Human rights and its inherent liberal relativism.”

11 Rodney, How Europe Underdeveloped Africa.

12 Before I continue my analysis, I would quote an important caveat by Shashi Tharoor, one of the most devasting critics of the massive exploitation of India and brutal repression of Indians by British colonial rulers. Tharoor begins his damning general evaluation of British colonial rule of India by saying: “As with all human enterprises, colonialism too brought positives as well as negatives.” (Tharoor, Inglorious Empire, p. 213).

13 Janis, International Law, pp. 43–57; Dunoff, Ratner, and Wippman, International Law, pp. 73–77.

14 For a sample of these treaties in the UN system, see Footnote footnote 5 in this chapter.

15 I use the term “so-called” to describe the international community because it is neither inclusively international nor sociologically a community, yet I do believe in the possibility of its dynamically proactive role in the future. I also see my present critique as the means to explore the potential role of the concept and its positive contributions.

16 International Court of Justice, Statute of the International Court of Justice.

17 The Paquete Habana case, 175 U.S. 677 (1900), at 686.

18 North Sea Continental Shelf Cases, 1969 I. C. J. Reports 3, 44.

19 Lauterpacht, An International Bill of the Rights of Man, pp. 3–53.

20 The underlying paradox here is whether a state becomes sovereign by its own self-declaration or through recognition by other preexisting sovereign states (Dunoff et al., International Law, pp. 105–30; Janis, International Law, pp. 169–79).

21 McGoldrick, The Human Rights Committee, p. 11.

22 United Nations Commission on Human Rights, “Commission on Human Rights: Report to the Economic and Social Council on the Seventh Session of the Commission,” pp. 57–85.

23 McGoldrick, The Human Rights Committee, p. 11.

24 Sardar, Postmodernism and the Other, p. 76.

25 Footnote Ibid., p. 76.

26 Mutua, Human Rights Standards, p. 60.

27 Sewpaul, “The West and the rest divide.”

29 Vienna Convention on the Law of Treaties 1969, Art. 19.

30 Article 46 of the Vienna Convention on the Law of Treaties, 1969, regarding detailed rules of concluding treaties. The point for our purposes here is that since general principles of international law of treaties apply, it may be necessary to make specific exceptions and limitations to the provisions of the law of treaties.

31 “U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Congressional Record, October 27, 1990.

32 Footnote Ibid., p. 21.

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