By Evan Moon '21
Image: Status of Ratification Interactive Dashboard by UN OHCHR
“Because that’s the international legal standard.”
The past summer, while attending various events with human rights organizations in South Korea, I couldn’t help but be irked by the above phrase. It was invoked quite frequently, if not always, as the organizations publicly challenged the government to take certain measures. From protecting civil rights in COVID surveillance, to demanding right to healthcare during lockdowns, they would cite laws and policies in EU/U.S. (“that’s how the great countries do it”) and international legal regime (“the ICCPR says so”).
As a soon-to-be thesis writer (and now regretfully a “writer-in-progress”), I found this to be illustrative of certain flaws within my topic of interest — international human rights law (IHRL). Why must we always resort to citing international law in arguing for domestic matters? Why not rely on our own laws and practices? Does our constitution not guarantee rights, dignity, and equality? Why is “international human rights law says so” a better justification than “the safety and happiness of our people depend on it”?
When I asked these to a lawyer later on, the answer was more bitter than I imagined. “Well, that’s because the government is more scared of international law than domestic law. Countries like Korea always have to be careful of international human rights standard in order to be treated well and avoid sanctions — countries like U.S., of course, don’t have to care at all.”
International human rights regime invokes a rosy picture of the world where everyone, regardless of who they are or where they are from, is afforded universal, equal, and irretrievable rights. IHRL, the binding legal commitments to human rights, is meant to deliver that picture to us. Withstanding its idealistic goals as well as its many achievements, however, IHRL has become a subject of critique from both scholars and practitioners. From its conceptual birth to practical enactments, the world has witnessed several shortcomings that make us question whether IHRL is really doing what it’s mean to do — promising and mandating universal human rights. Some might even say that it’s fundamentally incapable of doing the job, or perhaps that what it’s meant to do isn’t that ideal after all.
What does this all mean? Let’s first look at the birth of IHRL. The contemporary human rights discourse began with the ending of WWII and its disastrous atrocities, which prompted the world to create commitments that would ensure no such violence happen again, and that no one would be subject to the dehumanizing conditions. First documentation of this movement was the Universal Declaration of Human Rights (1948), which while not a law itself, inspired a series of IHRL such as the International Convenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966).
The movement here is seemingly ideal. Who doesn’t want human rights? However, this human rights movement and the ensuing corpus are not as innocuous or neutral as the UN would have you believe. One of the most prominent critiques has been Makau Mutua, an international legal scholar from Kenya. On the birth of IHRL, Mutua points out that no amount of violence, atrocities, enslavement and colonization of non-Europeans moved the western world to create this movement, yet it only took “the genocidal extermination of Jews in Europe to start the process of the codification and universalization of human rights norms.” (Note: this should be taken NOT to undermine the atrocity of genocide in WWII, but rather to highlight the absence of similar response to the violence against other parts of the world.) Not only that, he problematizes the theoretical underpinnings of human rights in western, European philosophy — the concepts of rights and responsibility, liberal individualism, and the colonial universalism that seeks to “emancipate” the others to resemble the European humanity.
One might think that these are just theoretical suppositions, but an examination on the International Criminal Court, for instance, yields support to Mutua’s critique. While founded to end global atrocities and to take a step towards universal human rights, it is no coincidence that the defendants of ICC have been predominantly from Africa, and that 10 out of 11 situations investigated by the Court all involve an African state. Not only that, its premise on individual criminal accountability, born from the European philosophy of liberal individualism, has been criticized for its lack of consideration for the context behind violence in Africa — colonialism, imperialism, and global economic injustice created and perpetuated by the western states — and for its shift of blame from the colonial states to the colonized individuals.
Then, there are questions around whether international law is a good instrument for human rights after all. International law is surprisingly limited in its authority and function; while it is binding for its signatories, there are many loopholes and leniency around who signs it, and how it’s enforced. One big factor behind this is sovereign self-determination, which enables states to pick and choose which international law to follow, to what degree. (Customary norms can be an exception, but even to that states can express disagreement and not follow.) Hence, states can simply choose to not participate in human rights law, especially when it does not serve their national interest, or if they are powerful enough to avoid political pressure. Another shortcoming is enforcement of IHRL — despite being binding, human rights law, such as the ICESC or the 1951 Refugee Convention, often lack enforcement mechanism to ensure that states adhere and do in fact provide relevant rights.
These shortcomings are well illustrated in international law on migrant rights, particularly the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (“ICRMW”). In order for migrants to be protected in their destination, the country that one migrates to — the state of immigration, as opposed to emigration — needs to sign the law and provide rights. However, while being one of the most prominent international laws on migrant rights and protection, the ICRMW falls severely short on ratification, with only 55 state parties. Not only that, one can easily find that states of immigration — the rich, wealthy, and western states — have predominantly slipped out of signing the convention. Hence, this particular law is rendered relatively ineffective in delivering migrant rights to the areas where it actually matters, because insofar as the state refuses it, there is very little that IHRL can do to realize its promise.
Of course, these flaws and limits should not go to diminish or neglect the generative impacts that IHRL has brought in the world so far. No system is perfect, and an institution like IHRL that has such a grand purpose is bound to not meet all of its promises. Nonetheless, critical interrogation is a necessary step in steering the system towards the right direction, and the reported shortcomings do call us to reevaluate the effectiveness of IHRL, as well as its ideal of universal human rights. Is international human rights law capable of delivering human rights? Can it truly serve the “universal” humanity, not exclusive to the western power that crafted it? Or is there something fundamentally flawed in its birth and structure, and if so, where’s the alternative?
An excellent analysis of shortcomings in IHRL. I wonder how you would answer your own concluding questions. Suppose we grant you that each of the shortcomings you identify is a genuine shortcoming of IHRL:
(1) The legal establishment of the IHRL framework only happened after a 1940s genocide against Europeans (the Holocaust), not after earlier genocides against non-Europeans by Europeans (ex: the Armenians by the Ottomans (a European empire), the Herero by the German Empire, indigenous Americans by various European colonial empires), or against non-Europeans by non-Europeans (the Dzunghars by Qing China), or against Europeans by Europeans (the Circassians by the Russian Empire).
(2) The ICC’s primarily going after African states, and giving most European rulers a pass (the Yugoslav war crimes trials are the exception, on this view.
(3) IHRL usually ignores the global injustices that lead to many of the international crimes it focuses on. It blames individuals and state regimes, rather than international structures and global systems for causing the crimes.
(4) IHRL’s being mostly customary and treaty-based international law means that states can escape its requirements if they choose. All they need do is publicly reject the custom or not sign the treaty.
(5) Enforcement mechanisms for IHRL are limited in number and power, given (4) and the fact that states have sovereignty.
If we grant all that, how should we answer your concluding questions? What would it mean to deliver human rights, to truly serve universal humanity, or to be an alternative to IHRL? Should we favor non-universalist/regional interpretations of basic legal rights? Should we seek an alternative to states and their sovereign power? Should we demand a systems and global approach to understanding international crimes? Should we imbue the content of IHRL with ideas and values form non-state sources, local communities, for example?
A well-thought-out and thought-provoking piece, thanks for sharing it! In another class of mine, I am actually working on a project which attempts to amass as many ideas as possible about the possible alternatives to the universalizing language of international human rights law which comes from a particular western, Christian lens or framework. Thinking about how Christianity frames concepts of human dignity, it becomes pretty clear that human rights law is broadly based on this conception. With this, it can’t really be universal. In my discussions, the only real consensus that we have come to is that there seem to be certain “basic” rights that feel pretty universal, namely the right to food, water, and shelter. Beyond these, they all become pretty contentious. Therefore, I, unfortunately, cannot answer your question, except to say that perhaps human rights law should be used to positively affect the lives of individuals, rather than as a punitive measure — compelling powerful countries to offer aid in the form of food and clean water and building materials, but nothing more that could then infringe on country’s sovereignty.
As someone who is also investigating the power structures and failures that exist within the world of international law, your analysis of the shortcomings of IHRL are particularly prevalent to me. The lack of accountability within the United States is terrifying and frustrating — what is the purpose of international law if the law is applied only to certain nations who oppose western philosophy? As I examine the shortcomings of the ICC and the UN in preventing and prosecuting genocide, I have noticed a similar pattern, in which prosecution is often ignored against western countries. Especially in a nation like the United States, which has largely failed to accept international law, state sovereignty reigns in preventing a growing strength and scope in IHRL. With the United States’ continual refusal to join international law institutions, most prominently the ICC, do you think that affects the efficacy of action of other nations? Is the United States’ philosophy setting the precedent for international law, even when we choose not to follow it? While I agree with state autonomy and individualism, I remain wary of the possibility of justice through international law if the system is applied unequally, or not applied at all, in states with a great level of influence. I am curious to see whether a new administration will result in a more justice-oriented approach to IL will emerge in the United States and if that approach will influence the actions of other nations.
As it seems others in these comments have thoughtfully discussed your topic through the lens of their own, I thought I’d do the same. I wonder if IHRL is ever utilized inside the United States as a tactic for passing legislation by elected officials. While I acknowledge that the United States largely ignores international law, there’s definitely a normative component to IHRL that I feel could appeal to a large portion of the country. Of course, this would likely be accompanied by a division between those agreeing that we should follow and mimic IHRL and “America first”-driven sentiments. Furthermore, I wonder if there could be a grassroots movement based on this normative idea to force the United States to acknowledge these laws.