Christopher Sabatini
The modern international human rights system that emerged from World War II as well as the creation of the United Nations (UN) survived the Cold War and anarchic international society of state competition to evolve, adapt, and expand. Over the course of its seventy-five–year history, what was originally a set of ideals based on the dignity of human beings, their fundamental rights, and the obligations of states to protect them grew imperfectly into a set of international norms, treaties, and international and regional institutions. This international normative, institutional infrastructure helped spark the formation of a community of local and transnational activists, and this in turn, together with the post–World War II human rights architecture, has helped consolidate and realize the promotion and defense of human rights promised in the early articulation of these ideals.
The process was never linear and certainly never balanced. Great-power politics, the Cold War, national interests, humanitarian crises, socioeconomic inequality, and lack of state capacity challenged the high-minded notion that human rights would be applied to all states equally or that all people would enjoy access to them. And for decades, from governments across the ideological spectrum, rhetoric and policy in defense of human rights have been instrumentalized for political agendas and national interests. Yet despite this, particularly after the 1970s, the moral, legal, and political principles and obligations of human rights took root and grew.
The formation and expansion of the international and regional human rights systems coincided with the broader emergence and consolidation of international law in the postwar era on issues of trade, norms for the conduct of war, refugees, and the environment. But arguably, human rights treaties and practice were the most intrusive in terms of national sovereignty. These historic and subversive ideals placing the power of human dignity above state rights informed international and domestic discourse, captured the imagination of citizens and activists, shaped popular demands on governments and policymakers, and, in many countries, formed the basis of domestic law and principles of jurisprudence. Human rights and the treaties and customary laws that embodied and reflected them—together with a global human rights movement—helped curb state abuse and in some cases contributed to the downfall of autocratic governments in Africa, Asia, Eastern Europe, and Latin America.
The Early Years and the Cold War
There are long-standing debates about the genesis of the idea of human dignity and rights and the accountability or responsibility of rulers and states to defend them. For some the philosophical foundations extend to ancient Greece, Roman law, the Enlightenment, or the debates and activism in Europe to end slavery.[1] For others the basis of social contract theory that a ruler’s legitimacy rests on the consent of the governed arises from English liberal philosophers of the seventeenth and eighteenth centuries. Whatever the roots of human rights, such discussion does have a bearing on their universality. As the argument goes, human rights—especially civil and political rights—are a Western concept and have little relevance to other societies and their experiences. But the formation of this concept in the West, especially as it defines and defends the dignity of individuals and their liberties, does not preclude its applicability to the human condition elsewhere—much as philosophical insights into the human condition arising in non-Western societies and traditions have universal applicability.[2] Others have pointed out that concepts of human dignity that are the core of human rights exist in Islam and Hinduism,[3] and lawyers and scholars representing different cultures and religions contributed to the drafting of the Universal Declaration of Human Rights (UDHR).[4] Indeed, norms and promises of political and civil rights—especially when interpreted collectively as the right of self-determination—served as moral and political leverage against colonial powers for independence leaders and movements in Africa and Asia.[5]
It was the United Nations in 1945 that launched the concept of universal human rights in international law, though narrower treaties had introduced the limited notion of rights before this. In its preamble, the UN Charter declares: “We the people of the United Nations . . . reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women,” and goes on to commit the UN to “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”[6] While the language did not extend as far as some representatives gathered in San Francisco wanted (including those from Latin America), the charter listed the promotion of human rights as one of the mandates of the new multilateral body and called for the creation of a commission by the Economic and Social Council (ECOSOC) to monitor and oversee this new international commitment.
The Universal Declaration of Human Rights, formulated soon after, was adopted as a resolution by the UN General Assembly in 1948. By setting out the notion that human rights were universal and thus, to quote John Simmons, “rights possessed by all human beings (at all times and in all places, simply by virtue of their humanity),” the charter and the UDHR extended those rights to all peoples.[7] By inscribing the concept of equal rights and, in the case of the declaration, defining these rights as universal, through language and status, both these instruments committed members to protect them domestically.
However, while the UDHR was originally conceived as a broad proclamation that would include political, civil, economic, and social rights, its preparation and ratification into a legally binding treaty became caught in the ideological and geopolitical tensions between the United States and the Soviet Union. The set of economic and social rights was not entirely foreign to the United States: President Franklin Roosevelt’s 1941 State of the Union address, in which he laid out the “Four Freedoms,” spoke of freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear (emphasis mine).[8] Nevertheless, after 1948 the Soviet Union and a large bloc of developing countries shied away from the largely liberal West’s greater emphasis on political and civic rights, focusing instead on the economic and social components of the treaty. In 1966, with the support of the Soviet bloc and developing countries, the UN approved two separate sets of rights: the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights. These instruments set the rights originally outlined in the Universal Declaration on a legally binding footing and placed the responsibility for implementation firmly on states; by 2021 more than 160 states were parties to each. But the reluctance of the United States and many of the Western democracies to accord the same importance to economic and social rights as to the political and civil rights that defined their political systems gave the former a seeming secondary status, despite repeated UN declarations and summits that reinforced the indivisibility and interdependence of political/civil and economic and social rights. A raft of other treaties were adopted around this process, more of them in the mold of political and civil rights, including the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1981), the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1987), and the Convention on the Rights of the Child (1990).
These international treaties and agreements gave birth to a set of bodies intended to monitor (and in the case of some regional human rights bodies, to adjudicate) these obligations. In 1946 the UN created the UN Commission on Human Rights (later re-formed as the UN Human Rights Council [UNHRC] in 2006), establishing an institutional body and procedural means to promote protection of these rights. Both are political bodies with state members, not legal arbiters of rights compliance. As such they have both strengths and weaknesses in monitoring and criticizing human rights practices in countries. As political entities they have had the capacity to wield significant political pressure to change state behavior in certain cases. In other cases, they have been at the mercy of powerful states, regional blocs, and alliances, and this has led to a distorted focus on certain issues and anomalous failures to censure egregious behavior. Nevertheless, even within those limitations, innovations such as the creation of special rapporteurs to investigate and report on specific countries and themes, and the Universal Periodic Reviews in which countries—and nongovernmental organizations (NGOs)—review and comment on human rights practices of UN member countries, have given the UNHRC an importance beyond its original conception. Through these processes, states periodically report on their compliance and attend oral hearings. In the 1990s, the role of the UN High Commissioner for Human Rights was added. The Office of the Commissioner for Human Rights is charged with assisting governments to meet their human rights obligations, but perhaps inevitably it has become a focal point for local human rights groups and has helped draw attention to cases of human rights abuse, recently, for instance, in Syria and Venezuela.
At the same time, regional multilateral bodies were developing their own normative infrastructure for human rights. In Europe, the European Convention on Human Rights was adopted in 1950 to safeguard civil and political rights, and the European Court of Human Rights followed in 1959. The Lisbon Treaty, which entered into effect at the end of 2009, made the Charter on Fundamental Rights a binding element of European Union (EU) law. In the Americas, the Inter-American Convention on Human Rights of 1969 drew from the charter of the Organization of American States that declared the regional body’s commitment to human rights. When the Inter-American Convention entered into force in 1979, it reorganized and strengthened the Inter-American Commission on Human Rights and created the Inter-American Court of Human Rights based in San José, Costa Rica. In Africa human rights treaties and bodies came later: the African Charter on Human and Peoples’ Rights was originally drafted under the Organization of African States (later the African Union) in 1981 and passed into effect in 1986. The Charter led to the creation of the African Commission on Human and People’s Rights and the African Court on Human and People’s Rights, in 1987 and 1998, respectively. To date, there have been no similar regional human rights–based treaties or bodies in the Middle East or Asia. In 2009 members of the Association of Southeast Asian Nations (ASEAN) established an Intergovernmental Commission on Human Rights, but the body has only weakly defined powers, mostly relying on states’ self-monitoring and reporting. In some countries international human rights principles and norms also became a key part of domestic law and jurisprudence. In Argentina, Mexico, and South Africa, for example, such norms have either become officially part of constitutional or local law or can be drawn on by local courts and judges.
Post–Cold War Human Rights
The decade after the end of the Cold War could arguably be called the high-water mark of international human rights, despite the lack of a global consensus. There was a broader and more active acceptance that states and multilateral bodies had a legitimate right to speak out and monitor human rights. With this came the expansion of human rights activism to include democratic rights such as the right to free and fair elections, demonstrated by the wide acceptance of international election monitoring at the time. During this period states also took steps to protect populations through international criminal law. In 1993 the UN Security Council (UNSC) created the International Criminal Tribunal for the Former Yugoslavia (ICTY) to investigate and try cases of genocide, war crimes, and crimes against humanity committed during the civil war in the former Yugoslavia. The following year, the UNSC created a similar court, the International Criminal Tribunal for Rwanda (ICTR), to investigate the horrific bloodletting that had occurred in that country. In 1998, states signed the Treaty of Rome that would form the basis for a permanent court with jurisdiction over genocide, war crimes, and crimes against humanity, “when committed as part of a widespread or systematic attack directed against any civilian population.”[9] Two years later the International Criminal Court (ICC) was established in Geneva. In 2018, the crime of aggression was added to the ICC’s mandate. A total of 125 countries submitted to its jurisdiction, though the Philippines and Burundi later withdrew.
Since its creation the ICC has been controversial. Under the administration of President George W. Bush, the United States refused to place itself under the Court’s authority and sought to prevent it from prosecuting U.S. citizens.[10] The Bush administration’s hard-nosed opposition to the Court (even using the threat of cutting international assistance to extort agreement from poorer countries not to prosecute U.S. officials) demonstrated that at least one major global state would not consistently submit to its jurisdiction. There were also complaints about the slow pace of investigations and prosecution under the ICC’s first prosecutor, Argentinian jurist Luis Moreno Ocampo.[11] Its efforts to prosecute leaders and groups involved in conflict, such as the president of Sudan, Omar Hassan Ahmed al-Bashir, in 2009 and 2010, raised the concern that by aggressively giving notice that current combatants or heads of state would face prosecution and likely prison, the ICC was reducing the potential for negotiations or for leaders to step aside peacefully. Critics also worried that the ICC was focusing its attention too much on Africa, creating—or, for some, reinforcing—the impression that the global criminal court was an instrument of international and human rights law that applied only to the weak.[12] South Africa and The Gambia almost withdrew over this apparent Africa-centric focus. Overall, in twenty years the ICC has achieved only ten convictions.[13] Nevertheless, by its creation and through its public role, it has built a sense among activists, international jurists, and citizens that impunity for egregious, systematic crimes against humanity will no longer be the norm, even if the avenue for justice is imperfect and many of its indictments may remain—for now—public recognition of their crimes.
A further step toward the international enforcement of human rights was taken in 2001 with a report from the International Commission on Intervention and State Sovereignty in what became known known as the Responsibility to Protect or R2P. The goal was to prevent a recurrence of the sort of horrors witnessed in Rwanda in the early 1990s. It was an admission of the international community’s collective guilt and its sense of responsibility for failing to intervene early to stop the genocide. At the 2005 high-level UN World Summit, member states declared their preparedness to take military or other collective action, if authorized by the UNSC, to help protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. But R2P’s star has waned since 2011, when the UNSC, having authorized the use of force to protect Libyan civilians under attack by forces loyal to Muammar Qaddafi, changed course midway through the mission, to overthrow the Qaddafi regime. The shift from protection to regime change, the loss of civilian life during the operation, and the chaos that followed reinforced the fears that R2P was a cover for the agenda of great powers and when used bluntly could itself become a threat to human rights and civilians.[14]
Civil Society: Breathing Life into Human Rights Norms
None of the push to realize the goals of the UN and liberal ideals or to expand human rights norms and jurisprudence would have been possible without the emergence and consolidation of transnational human rights and grassroots organizations and networks. Their growth picked up in the 1970s in the wake of a series of coups d’état in countries such as Greece (1967), Czechoslovakia (1968, brought about by Soviet intervention), Chile (1973), and Argentina (1976), and the repression that followed in all these cases—often exposed by local activists and the media. As Samuel Moyn has argued, the independence movements of former colonies in Asia and Africa gave historical momentum and definition to the idea of self-determination and individual rights and to the modern-day human rights system. That momentum found its formal recognition as a central theme on the world stage and as a policy of state among the great powers with the election of President Jimmy Carter (1977–1981), who positioned human rights as a core element in U.S. foreign policy.
The number of international and domestic nongovernmental human rights groups rose dramatically in the period. The first was Amnesty International, founded in 1961 in London in response to an article, “The Forgotten Prisoners,” published on May 28 in The Observer. By profiling and personalizing the individuals held in detention, the U.K.-based organization focused international attention on the existence and plight of political prisoners, bringing the expression “prisoner of conscience” into popular currency—the term referring not just to the injustice but also to the victims’ higher moral calling. A year after Amnesty International won the Nobel Prize in 1977, Helsinki Watch was formed. Initially created to monitor human rights in the Soviet Union and Eastern bloc countries that were signatories to the 1970 Helsinki Accords, the organization, renamed Human Rights Watch in the 1980s, expanded its scope to the United States and Latin America and later globally. These pioneering nongovernmental organizations did more than just open a new field of human rights research and advocacy; they and the hundreds if not thousands that followed, and their networks, helped embed human rights in public consciousness and international relations.[15] International human rights groups served as training grounds for new activists and built bridges between homegrown local church groups, community organizations, social movements, trade unions, foundations, and the like across borders and to international organizations and other governments. According to Margaret Keck and Kathryn Sikkink, between 1983 and 1990 alone, the number of human rights NGOs across the world doubled.[16]
The change was not just in numbers, networks, and public discussion. This new transnational movement created a sense of community that brought new ideas, information, and testimonials to international attention and, by relaying information to sympathetic governments and appropriate officials in multilateral organizations, pressed for action to address human rights abuses. The network embodied the newfound concept of sovereignty expressed in the original human rights declarations, moving away from the concept of a state’s sovereign right to govern in its own manner within its borders, to one where it was now accountable to the independent voices within its own population and to the criticism of other states and multilateral bodies. This was much the intention of the original body of the UN and other international and regional human rights treaties and conventions, but by citing examples that cataloged and humanized the abuses, providing access to independent objective information, and fostering the alliances and advocacy of a transnational community of committed citizens, civil society helped realize those norms—if not always in enforcement, then at least in domestic and international debates and in perceptions of accountability. Actions facilitated by local activists and international forensic scientists established the culpability of the military junta for disappearances in Argentina; dissidents such as Andrei Sakharov and Elena Bonner in the Soviet Union and Václav Havel in then Czechoslovakia gained international attention and, in some cases, release from prison thanks to the international attention brought to their cases by this global web of conscientious activism.
In later years, this spirit and these civil networks expanded and adapted to other aspects of the extension of human rights, particularly as autocratic governments from southern Europe, Latin America, the Eastern bloc, Asia, and Africa during the late 1970s to the 1990s gave way to elected governments—in no small part because of the awareness and pressure brought by transnational civil society. Later, Indigenous; women’s; environmental; and lesbian, gay, bisexual, and transgender (LGBT) rights drew their inspiration from the rights explicit or implicit in the original texts of the treaties from the 1940s and subsequent ones that advocated for their expansion, applying many of the same tactics and often working with some of the same founding human rights organizations. Civil society’s by this time well-worn process is well-explained by Bob Clifford: “First, politicized groups frame long felt grievances as normative claims. Second, they place these rights on the international agenda by convincing gatekeepers in major rights organizations to accept them . . . third, states and international bodies, often under pressures from gatekeepers and aggrieved groups, accept new norms. Finally, national institutions implement the norms.”[17] This process has become so standard that today it almost seems organic and natural, to the extent that it has been imitated by nondemocratic states (such as Russia and China) in their efforts to roll back human rights and undermine criticism.
The recognition, pursuit, and protection of human rights norms internationally, whether through state foreign policy or through multilateral institutions, was never uniform or consistent. The on-the-ground successes in curbing the human rights abuses of governments, such as those mentioned above, occurred primarily in smaller, weaker countries and were at times (as in U.S. policy toward Cuba) driven more by domestic politics.[18] These were states that were more susceptible to leverage through suspension of trade privileges or the curtailment of bilateral or multilateral economic or military assistance. Such tools have been notably less successful in the case of China, which, given its large internal economy, lacks the exposure to outside economic pressures—in no small part because it often enjoys the support of international businesses deeply invested in and reaping profits from the large Chinese market and its global trade. These norms and processes have also proved weak in protecting the rights of individuals and communities in a growing number of situations of state collapse, such as in Libya, Syria, or Venezuela.
The global fissures over human rights that existed at their birth in international treaties in the 1940s and that would assume greater prominence in the 2000s were already evident in 1993. At that year’s World Conference on Human Rights in Vienna, the United States hoped for a clear post–Cold War reaffirmation of the global commitment to human rights. Those hopes hit a snag in a bloc of countries including China, Iran, Pakistan, Singapore, and Syria, which argued that human rights, as a Western fabrication, did not apply to other societies—in particular, their countries. The conference’s final Vienna Declaration and Programme of Action repeated states’ commitment to the international bill of rights (as the UDHR, the International Covenant on Civil and Political Rights—plus two additional protocols—and the International Covenant on Economic, Social and Cultural Rights became known collectively), but with the caveat that “the significance of national and regional particularities and various historical, cultural, and religious backgrounds must be borne in mind.”[19] While the declaration reiterated the universality of human rights and created the UN High Commissioner for Human Rights, in the following thirty years the rift between the developed North and China, Iran, and other countries widened, especially as domestic politics shifted and global great-power competition returned.
Debates and Doubts
To retrace these founding moments and celebrate them is not to project a narrative of their evolution as teleological or even as perfect public good.[20] Even in the “good times,” the realities of power politics, global economic inequality, ideological prejudices and alliances, and the inherent lack of autonomy of multilateral organizations remained. The successes were selective, at best; despite the lofty rhetoric, they rarely triumphed over realpolitik; autocratic states that abused human rights were left largely free of vocal government criticism if they possessed resources or economic power (Saudi Arabia and China) or were critical to regional peace (Egypt), or if the cost of the potential turmoil from possible regime collapse was deemed too high (Algeria, Iraq before 2003, or Uganda). And in the worst cases, human rights were used as a cover for intervention and the bald extension of a state power (in part, Iraq in 2003, especially after the invading forces failed to find the promised weapons of mass destruction). There were also often the unintended consequences of even the best intentions (such as in Libya in 2011) or of struggling to find a balance between accountability for abuses and reconciliation (as Colombian president Juan Manuel Santos argued in defense of his 2016 Colombian Peace Agreement).
As human rights norms, institutions, and jurisprudence have developed, a number of criticisms have been directed at the heart of the UDHR and the broader human rights movement. For scholars such as Makau Mutua and Samuel Moyn, the distinction between civil and political liberties and economic and social rights, and the emphasis on the former, led to distortion that disadvantaged the rights most relevant to the needs of many citizens in the Global South.[21] Moyn recently extended this argument to make the powerful case that by failing to address extreme inequality and socioeconomic needs, the current human rights movement has lost the “imaginative near-monopoly as a framework for reform.”[22] By focusing on political and civil rights, Moyn argues, the rights agenda has ignored—even implicitly legitimated—inequality. Without a broader attention to an agenda of social rights now with the rise of populism, he asserts, the achievements of human rights can be “easily reversed.”[23]
At the same time, there are concerns over the “justiciability” of economic and social rights. Economic and social rights, for instance, to housing, health care, and education, are related more to state capacity that many countries in the developing world lack, and are not directly enforceable—a fact acknowledged in the covenant but that nevertheless hampers their implementation through traditional justice systems and international bodies. Unlike violations of civil and political rights, there is not an immediate, identifiable perpetrator; poverty, inequality, and lack of access to public goods are linked to a complex web of factors rather than the result of intentional abuse by state or nonstate actors. For some this leads to the argument that for practical reasons, economic and social rights are best considered aspirational rights or public policy goals rather than absolute rights. Amartya Sen and Martha Nussbaum go further. They argue that civil and political rights are essential to the condition of human dignity that is core to the philosophical and practical conditions and process of development.[24] In this view and others like it, it is therefore impossible to imagine and promote economic and social development, and the rights associated with it, without civil and political rights, and hence the four aspects cannot be separated. Nevertheless, popular discontent and global concern over endemic poverty, and with it the political and social exclusion that threatens human dignity, have led to a growing movement, especially within the Global South, of a “right to development.” In 1986 the UN General Assembly adopted the Declaration on the Right to Development. declaring this to be an “inalienable right” “subject to the relevant provisions of both International Covenants on Human Rights.”[25]
Another criticism relates to what Michael Ignatieff has called “rights inflation.”[26] He and others argue there has been an increasing tendency to imbue any desirable public good—development, progressive economic policy, environmental protection, constraints on the abuses of transnational corporations (and recently even anticorruption measures, as Santiago Canton and Angelita Baevens discuss in chapter 11)—with the moral authority, urgency, and legal doctrine of human rights law.[27] As the argument goes, this risks expanding the theoretical basis of human rights and so diluting their effectiveness, as well as endowing human rights with a quasi-religious quality, capable of remedying all perceived evils, rather than remaining on firm legal ground. As an example of this trend, Hurst Hannum calculates that in 1990 the special procedures and expert investigations of the UN Human Rights Commission (later Council) included a narrow set of issues primarily linked to physical security, civil rights, and socioeconomic rights, whereas by 2017 the Council had forty-four special procedures and experts on topics ranging from the disposal of hazardous material; foreign debt; and a clean, healthy environment; to transnational corporations. Very few of these later topics had specific links to treaties or obligations, and some—such as on debt and transnational corporations—targeted nonstate actors.[28]
There is an additional point implied in many of these criticisms: that the human rights agenda had a false teleology, deriving from a tendency to imagine the philosophical and practical evolution of human rights as an expression of the natural historical order that will continue to progress as such. A criticism of this view formed part of Moyn’s revisionist history of the human rights movement—though his claims of the shallowness of rights consciousness and political and social commitment to them have been challenged.[29] This sense of human rights determinism has led to a naivete about the security and progress of human rights relative to pressing socioeconomic needs, and a dangerously impractical view about how the world should work.[30]
None of this is to deny the very real (though admittedly fragile) progress and impact that the focus on human rights has had on world affairs, the evolution of domestic rule of law, and the protection of lives and freedoms. Popular beliefs and expectations have changed: according to Pew Global surveys, in 2020 a median of 64 percent of citizens in thirty-four countries supported the view that individuals should have the right to express themselves. The same surveys revealed that 74 percent of citizens believed women should have the same rights as men, and 68 percent supported freedom of religion.[31] These gains in civil and political rights are seen, for example, in the declining use of the death penalty and torture, the proliferation of independent media, and the expansion of women’s rights in the past seventy-five years. Improvements in poverty levels, literacy, children’s school enrollment, and health care increased attention to the rights of Indigenous and minority cultures and traditions; the formulation of and advances toward the UN development goals are also evidence of the progress of economic, cultural, and social rights—despite their seeming lower priority in international discussions and advocacy.
Seventy-five years of human rights have transformed our belief in human dignity and the obligations of states and societies, and have inspired generations of citizens and activists. The jailed protesters in Hong Kong, those killed on the streets defending democracy in Myanmar, demonstrators demanding fair elections in Belarus, harassed LGBT activists in Russia, or dissidents in North Korea or Cuba are all struggling for more than a philosophical concept or a vestige of Western culture. These lives, their stories, and the values that inspired them will not be easily extinguished, whatever happens to the normative and institutional infrastructure of human rights internationally and domestically, or in the debates among academics.
But Then There’s Today
Despite the successes and enduring popular commitment to human rights, the infrastructure of rules, processes, and institutions, and efforts to apply liberal norms in world affairs and domestic law and policy have eroded in recent years. Thirty years on from the World Conference on Human Rights in Vienna, the consensus around human rights has frayed.
The same debates continue—about the notion that rights are universal or mediated by local cultures, whether calling out violations amounts to foreign interference in sovereign affairs, and what to do about spoiler states—but rights abusers have become more outspoken and are finding unlikely partners. As they resist the legitimacy of international norms and the authority of multilateral organizations, NGOs, and other states to weigh in on human rights concerns, this new generation of autocrats is finding allies; China and Russia, which have in some cases provided financial support and diplomatic backing, are cheering on such autocrats and human rights abusers by asserting the rights of national sovereignty and noninterference. And at times even some of the states that created and defend the modern human rights system have given autocrats diplomatic and ideological cover, as with former U.S. president Donald Trump’s embrace of populist regimes from Brazil to eastern Europe and professed admiration for Vladimir Putin in Russia. The former president of the Philippines, Rodrigo Duterte, saying he “doesn’t care about human rights” and encouraged his supporters to kill drug addicts.[32] Russia and Poland have both asserted their sovereign prerogatives over the jurisdiction of the European Court of Human Rights.[33] Hungary’s prime minister, Viktor Orbán, has lambasted human rights as a product of “liberal imperialism.”[34] In Nicaragua, despite the protests of much of the developed world and sanctions imposed by the United States and the European Union, President Daniel Ortega violently repressed peaceful protesters, closed down independent media, and jailed or held under house arrest all of the main opposition leaders in the run-up to the 2021 presidential elections. Myanmar’s military junta was invited to an ASEAN conference only weeks after overthrowing a democratically elected government in a military coup, and after years of conducting genocide against the Rohingya people in Rakhine State. China’s genocide of the Uyghurs has met little international resistance. Even beyond the formal and rhetorical alliances among these human rights–abusing regimes, their individual and collective ability to avoid international accountability is also having an intangible, cumulative demonstration effect on other aspiring autocrats.
Human rights protections have even diminished within Western democracies. The rise of far-right parties across Europe has diluted these countries’ international commitments to protest the rights of asylum seekers. Syrian refugees in Denmark are being sent to Damascus because it has been deemed “safe” by the country’s immigration offices;[35] its Parliament also passed a law to establish internment camps outside Europe, possibly in Rwanda, to process asylum applications. The United Kingdom in 2022 attempted to implement a similar policy. These efforts resemble Australia’s notoriously cruel policy, restarted in 2013, of harboring asylum seekers in offshore detention centers in Papua New Guinea and the island of Nauru.[36] The European Union has signed agreements with Libya and Turkey to keep migrants from reaching its borders, despite evidence that such policies fuel rights abuses in both countries.[37] In the United States, judicial challenges delayed the Biden administration’s plans to dismantle his predecessor’s widely criticized policy of forcing asylum seekers attempting to cross the U.S.-Mexico border to remain in Mexico while their applications were being processed.
These domestic strains, and even attacks against human rights, have spilled over into foreign policy and the efficacy and legitimacy—if not the survival—of regional and international human rights bodies. Recent years have not been a smooth ride for the European system of human rights, whether through the Council of Europe or through the EU and its commitment to human rights norms and the democratic health of its members. In one example, an EU resolution criticizing China’s human rights record at the UN was blocked by Greece, allegedly because of the influence of Chinese investments in that member state.[38] The EU has also struggled to uphold its own commitments to the rule of law in Hungary and Poland. Brexit has created not only concerns about the United Kingdom’s commitment to the liberal order it helped found but also deeper tensions over its commitment to the European human rights system. In one example, after a series of judgments by the European Court of Human Rights against U.K. law limiting the right of felons to vote, the then prime minister David Cameron condemned the Court’s right to weigh in on domestic laws, criticizing it for not taking into account the “democratic decisions by a national parliament” and threatening that failure to do so would discredit rights.[39] It was an argument that could have been made by a number of populist governments in eastern member states against the European human rights system.
In the United States similar sentiments rejecting human rights institutions and international norms have grown, reinforced by a deepening nationalist/populist strain in domestic politics. While U.S. claims of exceptionalism have always meant that these currents run deeper, in recent years the United States has sought to openly undermine human rights institutions and norms. During the “war on terror,” the administration of President George W. Bush rejected international outcry over its systematic use of torture and the jailing of alleged terrorists without due process in Guantánamo.[40] While Barack Obama pledged to reverse the policies, the prisons there remain open, and the rejection of international human rights was resurrected with even greater hostility under Donald Trump’s America First agenda. The Trump administration withdrew the United States from the UN Human Rights Council (a decision later reversed by President Joe Biden), and its use of human rights as a blunt weapon to punish China for economic issues unrelated to human rights seemed a cynical (though not original) conflation of U.S. principles and economic interests. At the same time, President Trump’s enthusiastic personal embrace of human rights–abusing governments in Brazil, Hungary, the Philippines, Poland, and Russia scrambled what many believed was a consensus among liberal democracies to maintain political distance, at the very least, from such governments as they dismantled the rule of law and attacked political and civil rights.
Under the Trump administration, the United States also cut funding to multilateral and regional human rights organizations and temporarily placed sanctions on jurists in the ICC, including chief prosecutor Fatou Bensouda for investigating U.S. troops in Afghanistan for war crimes (another policy decision reversed by President Biden).[41] Domestically too, various concerns were raised over the Trump administration’s treatment of migrants and domestic protesters. When the Inter-American Commission on Human Rights attempted to hold hearings on U.S. policies toward migrants, the administration either refused to accept the Commission’s authority or refused to attend.[42] This cycle of rejection and limited compliance appears unlikely to abate given the political temperature in the United States today, despite Biden’s attempt to recover lost ground.
Within this divergence and discord among the historical post–World War II defenders of human rights have come not-so-subtle efforts by countries such as China and Russia—often in collaboration with current governments in Hungary, Nicaragua, the Philippines, Poland, Turkey, and Venezuela (among others)—to reset the human rights consensus internationally in their own favor. China’s compelling example of its authoritarian-led development successes has served it well as an example of the long-standing sentiment among many governments and citizens in the Global South that economic and social rights were downplayed or even ignored in favor of political and civil rights. Speaking often in the rhetoric of noninterference and solidarity within the Global South, Beijing’s nondemocratic development success, nonideological approach to building alliances, and offers of economic assistance and trade have become powerful alternatives to the once unipolar vision of an irreversible liberal tide and new world order.
At the same time, China has sought to fill the diplomatic and financial vacuum left by the United States and offer alternatives within and alongside existing multilateral institutions. In a move strikingly similar to the Trump administration’s liberal use of targeted personal sanctions over alleged corruption and human rights cases, China imposed its own sanctions on European officials and academics in retaliation for EU sanctions for the treatment of Uyghurs. The move turned against the West one of its own trusted tools to combat alleged perpetrators of human rights abuses. It is a weapon that many economically weaker states in the Global South have lacked.
Recent developments have added other challenges. Technological advances are placing unprecedented and potentially unaccountable power in the hands of liberal democracies and autocracies alike. The potential for abuse exists for any government, especially since in many cases these new technologies and their uses have outstripped the institutional scope and capacity of international human rights bodies and NGOs. Global tensions, nationalist populism, and gaps in multilateral preparedness have also provided unique opportunities for competition among states and a breakdown in cooperation, not just over the response to the COVID-19 pandemic but also over humanitarian crises and global inequality. The legacy of the pandemic and its aftermath is an even more economically insecure and unequal world from the one that already existed in early 2020. This will require even greater attention to the economic and social guarantees of the international human rights agenda while still protecting and expanding political and civil rights.
These challenges differ sharply from those that the global and regional human rights regime faced, and under which it evolved, seventy-five years ago. The question today is not whether those norms and institutions are fit for purpose for those novel pressures—they are not—but whether and how they can be reformed to meet them. The new forces should also perhaps prompt a reevaluation of the original goals of the human rights system, as Moyn has powerfully argued, challenging the human rights community to place greater emphasis on distributive justice.[43] This is a responsibility not just of the institutions themselves, but of the states that make them up and give them the force of moral, political, and economic power, and of the human rights NGOs and community that gave them life. When the human rights system inaugurated in 1945 with the adoption of the Universal Declaration of Human Rights reaches its hundredth anniversary, will we still celebrate its successes and capacity for change and survival? We can hope; fortunately, we are beginning to learn what the challenges are.
Notes
1. See Rowan Cruft, Matthew Liao, and Massimo Renzo, Philosophical Foundations of Human Rights (Oxford University Press, 2015).
2. Jack Donnelly, “Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions,” American Political Science Review 76, 2 (June 1982), pp. 433–49.
3. Boaventura de Sousa Santos, “Human Rights as an Emancipatory Script?,” in Another Knowledge Is Possible: Beyond Northern Epistemologies, edited by Boaventura de Sousa Santos (London: Verso, 2008).
4. Ahmed Shaheed and Rose Parris Richter, “Are Human Rights a ‘Western’ Concept?,” IPI Global Observatory, October 17, 2018, https://theglobalobservatory.org/2018/10/are-human-rights-a-western-concept/.
5. Steven Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (Cambridge University Press, 2016).
6. United Nations Charter, Preamble, www.un.org/en/about-us/un-charter/full-text.
7. A. John Simmons, “Human Rights and World Citizenship: The Universality of Human Rights in Kant and Locke,” in Justification and Legitimacy: Essays on Rights and Obligations, edited by A. John Simmons (Cambridge University Press, 2001), p. 185.
8. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).
9. Rome Statute of the International Criminal Court, Article 7, www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.
10. Jean Galbraith, “The Bush Administration’s Response to the International Criminal Court,” Penn Law Legal Scholar Repository (University of Pennsylvania Carey Law School, 2003), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2450&context=faculty_scholarship.
11. David Kaye, “Who’s Afraid of the International Criminal Court?,” Foreign Affairs, May/June (Council on Foreign Relations, 2011), www.foreignaffairs.com/articles/2011-04-18/whos-afraid-international-criminal-court.
12. Mary Kimani, “Pursuit of Justice or Western Plot?,” Africa Renewal, UN, October 2009, www.un.org/africarenewal/magazine/october-2009/pursuit-justice-or-western-plot.
13. See International Criminal Court, ‘ “Facts and Figures,” https://www.icc-cpi.int/about.
14. Calum Inverarity and James Kearney, “Recalibrate the Responsibility to Protect,” Chatham House Expert Comment, June 12, 2019, www.chathamhouse.org/2019/06/recalibrate-responsibility-protect; Cristina Stefan, “On Non-Western Norm Shapers: Brazil and the Responsibility While Protecting,” European Journal of International Security 2, 1 (February 2017), pp. 88–110, https://doi.org/10.1017/eis.2016.18.
15. See Aryeh Neier, The International Human Rights Movement: A History (Princeton University Press, 2021).
16. Margaret Keck and Kathryn Sikkink, Activists beyond Borders (Cornell University Press, 1998), p. 90.
17. Bob Clifford, “Introduction: Fighting for New Rights,” in The International Struggle for New Human Rights, edited by Bob Clifford (University of Pennsylvania Press, 2009), p. 4.
18. Tony Evans, US Hegemony and the Project of Universal Human Rights (New York: St. Martin’s Press, 1996).
19. Office of the United Nations High Commissioner for Human Rights, “Vienna Declaration and Programme of Action,” 1993, www.ohchr.org/en/professionalinterest/pages/vienna.aspx.
20. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, Mass.: Belknap Press, 2010).
21. Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press, 2008), and Moyn, The Last Utopia.
22. Samuel Moyn, “Human Rights Have Lost Their Monopoly as a Framework for Reform,” OpenGlobalRights, May 19, 2021, www.openglobalrights.org/human-rights-have-lost-their-monopoly-as-a-framework-for-reform/?lang=English.
23. Ibid.
24. Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011); Amartya Sen, Resources, Values and Development (Cambridge University Press, 1984), ch. 13, “Rights and Capabilities”; Amartya Sen, Development as Freedom (New York: Anchor, 1999); and Amartya Sen, “Democracy as a Universal Value,” Journal of Democracy 10, 3 (July 1999).
25. United Nations, Office of the High Commissioner for Human Rights, “Declaration on the Right to Development,” https://www.ohchr.org/en/professionalinterest/pages/righttodevelopment.aspx.
26. Michael Ignatieff, “Human Rights as Idolatry,” in Human Rights as Politics and Idolatry, edited by Amy Gutman (Princeton University Press, 2003).
27. Eric Posner, The Twilight of International Human Rights Law (Oxford University Press, 2014).
28. Hurst Hannum, “Reinvigorating Human Rights for the Twenty-First Century,” in Human Rights and 21st Century Challenges: Poverty, Conflict, and the Environment, edited by Dapo Akande et al. (Oxford University Press, 2020), p. 37.
29. See Sarita Cargas, “Questioning Samuel Moyn’s Revisionist History of Human Rights,” Human Rights Quarterly 38, 2 (2016), pp. 411–26.
30. For an overview of the academic debates and responses, see Stephen Hopgood, Jack Snyder, and Leslie Vinjamuri, Human Rights Past, Present and Future (Cambridge University Press, 2017).
31. Richard Wike and Shannon Schumacher, “Attitudes toward Democratic Rights and Institutions,” Pew Research Center, February 7, 2020, www.pewresearch.org/global/2020/02/27/attitudes-toward-democratic-rights-and-institutions/.
32. Jodesz Gavilan, “Groups Slam Duterte Gov’t Rights Summit as ‘Desperate Charade,’ ” Rappler, December 9, 2020, www.rappler.com/nation/groups-statements-duterte-government-human-rights-summit-attempt-vs-accountability-violations, and “One Year On, Duterte Remains a Human Rights Nightmare,” Amnesty International, July 3, 2017, www.amnesty.org/en/latest/news/2017/07/one-year-on-duterte-remains-a-human-rights-nightmare/.
33. “Russia Overrules the European Court of Human Rights,” EurActiv, July 14, 2015, www.euractiv.com/section/europe-s-east/news/russia-overrules-the-european-court-of-human-rights/.
34. “Civil Organisations Will Have to Disclose Foreign Funds,” Reuters, June 19, 2020, www.reuters.com/article/eu-hungary-ngo-orban-idINKBN23Q1JF.
35. Regin Winther Poulsen, “How the Danish Left Adopted a Far-Right Immigration Policy,” Foreign Policy, July 12, 2021, https://foreignpolicy.com/2021/07/12/denmark-refugees-frederiksen-danish-left-adopted-a-far-right-immigration-policy/.
36. Elaine Pearson, “Seven Years of Suffering for Australia’s Asylum Seekers, Refugees,” Human Rights Watch, July 16, 2020, www.hrw.org/news/2020/07/16/seven-years-suffering-australias-asylum-seekers-refugees.
37. No Escape from Hell,” Human Rights Watch, January 21, 2019, www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-contribute-abuse-migrants-libya.
38. Helena Smith, “Greece Blocks European Union’s Criticism at UN of China’s Human Rights Record,” The Guardian, June 18, 2017, www.theguardian.com/world/2017/jun/18/greece-eu-criticism-un-china-human-rights-record. The point is also made in chapter 4 by Alexander Cooley.
39. “Concept of Human Rights Being Distorted, Warns Cameron,” BBC News, January 25, 2012, www.bbc.com/news/uk-politics-16708845.
40. Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of America’s Values (London: Palgrave Macmillan, 2008).
41. “International Criminal Court Officials Sanctioned by US,” BBC News, September 2, 2020, www.bbc.co.uk/news/world-us-canada-54003527.
42. Christopher Sabatini, “Why Is the U.S. Joining Venezuela and Nicaragua in Discrediting a System to Protect Human Rights?,” Washington Post, January 17, 2020, www.washingtonpost.com/opinions/2020/01/17/why-is-us-joining-venezuela-nicaragua-discrediting-system-protect-human-rights/.
43. Moyn, “Human Rights Have Lost Their Monopoly as a Framework for Reform.”
