Human rights have become deeply embedded in the multilateral system since the UDHR was adopted in 1948. This system has proved resilient, but it faces significant pressures.
Remaking the world
The origin story of human rights goes back much further, but the establishment of an international human rights architecture is often counted as part of the effort to remake the world after the devastation of the Second World War. In 1941, the Atlantic Charter and US president Franklin D. Roosevelt’s ‘Four Freedoms’ speech both signalled that human rights should be a key part of the post-war order.
But this simplified story obscures some of the important dynamics in the creation of the human rights framework, including the reticence and obstructiveness of colonial powers and the essential contributions made by countries in the Global South. Many different currents and agendas were involved in making the human rights system. It is worthwhile to recount certain elements to give context to the present.
The first attempt at a supranational expression of human rights came from Latin America, pre-dating the UDHR by eight months. This stood in contrast to the ambivalence of the great powers, manifested for instance in the reluctance of France, the UK, the US and the USSR to discuss human rights during the Dumbarton Oaks Conference in 1944, or in the pledge by US secretary of state John Foster Dulles in 1953 not to ratify any human rights treaty. In terms of drafting the UDHR, the contribution of thinkers from states undergoing decolonization at that time – such as Hansa Mehta from India – is often under-acknowledged, as is the instrumental role of representatives of Global South countries such as Charles Malik from Lebanon and Hernán Santa Cruz from Chile.
The elaboration of the International Bill of Rights took place during what was simultaneously the era of decolonization and the Cold War. Both sides in the Cold War sought to shroud their own foreign policy with a sense of moral purpose. The US’s ‘Truman doctrine’ effectively presented a binary choice between freedom and oppression, while the Soviet side pointed to imperialism, racial discrimination and the failure of the capitalist West to deliver on economic and social rights. Notwithstanding the hypocrisy of both sides in the Cold War, the extent to which they emphasized human rights meant that the discourse became more entrenched in the multilateral system.
But the bifurcation of human rights in the two principal treaties that eventually came into being in 1966, the ICCPR and the ICESCR, essentialized a distinction between two competing visions of human rights. What was one in the UDHR became two and that bifurcation haunts the human rights system to this day – as illustrated most vividly by the fact that the US has still not ratified the ICESCR.
For states in the non-aligned ‘Third World’, as it was then called, the bifurcation made little conceptual sense, as the questions they faced were different. Human rights were being embraced – at least within elite circles – as one of the ways to make a decisive break with the coercion and impunity of colonialism. Many newly decolonized states had incorporated human rights concepts in their new constitutions, sometimes borrowing directly from the language of the UDHR. One of the earliest to do so was India, which enumerated a detailed and impressive list of rights in its 1949 constitution. As growing numbers of newly independent states joined the UN, the principle of self-determination articulated in the UN Charter came to be framed as a right. This direction of thinking was already clear at the 1955 Asian-African Conference held in Bandung, Indonesia.
The adoption of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1965 established a precedent for human rights to be incorporated in international law and applied universally, after several years in which the human rights project had stagnated. ICERD was the first core international human rights treaty, predating the ICCPR and ICESCR, which had been years in the making but were yet to be completed. Steven Jensen has shown that the ICERD process was driven by countries from the Global South, while the US and USSR showed little appetite for establishing human rights in international law. As Jensen argued, many Global South states wanted to confront racism and the legacies of colonialism through UN diplomacy. Decolonization was the ‘source of energy’ that reinvigorated human rights in the 1960s.
Many Global South states wanted to confront racism and the legacies of colonialism through UN diplomacy.
The wave of ICCPR and ICESCR ratifications in the 1970s and 1980s coincided roughly with the third ‘wave of democracy’, as newly decolonized states found their place in the emerging international system and began to establish their case for economic development. The discourse articulating the aspirations of these states included the idea of a ‘right to development’, advanced by African states as a way to address article 28 of the UDHR, which stated that ‘everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’ The right to development was elaborated in a declaration adopted by the UN General Assembly (UNGA) in 1986, with only the US voting against. The focus on economic inequality between states was (and remains) relevant, but it was an awkward conceptual fit for human rights, as the ‘right to development’ rests with the state instead of the individual, and there is otherwise no clarity on who the duty-bearer is.
In 1975, the Helsinki Final Act that emerged from the Conference on Security and Co-operation in Europe marked an important turning point for human rights diplomacy, with the US and its allies starting to bring human rights considerations into their foreign policy. Although US secretary of state Henry Kissinger opposed and then downplayed the human rights element of the act, the extent to which this element was adopted and used by movements and organizations in Eastern Europe ultimately spurred US diplomacy on human rights under the presidency of Jimmy Carter from 1976 onwards. For the US, human rights became an important form of leverage against the USSR.
By now, the institutional structures of human rights diplomacy were largely in place. The UN Commission on Human Rights (UHCHR), its main human rights body, had been established in 1946. Various regional human rights regimes were taking shape, including in Europe, the Americas and Africa. An international human rights movement had also begun to emerge: NGOs such as Amnesty International (founded in 1961) played an important role in shaping new human rights norms and instruments, albeit initially only civil and political rights. The number of NGOs would expand significantly in number during the next two decades. The formation of the Moscow Helsinki Group in 1976 to monitor Soviet compliance with the human rights provisions of the Helsinki Final Act was followed in 1978 by the establishment of Helsinki Watch in the US. This was the first of several ‘Watch Committees’ around the world that eventually came together as Human Rights Watch (HRW) in 1988.
Towards the end of the Cold War, human rights became an instrument of power for the US, while popular disenchantment against the government grew in the USSR. As Mikhail Gorbachev would discover, the dissonance between the USSR’s international human rights rhetoric and the domestic experience of its citizens was one of the catalysts for the fall of Soviet rule. It was perhaps chiefly in this period that a firm association came to be made in the West between human rights, civic freedoms, and democracy. Human rights as defined by the West were folded up in a broader vision for a world order dominated by the US.
Freedom and democracy
Two moments in 1989 had an important effect on the course of human rights, one dramatic and the other more insidious.
The most consequential of these moments in the medium term was the fall of the Berlin Wall in November 1989. This ushered in an age of US hegemony and a period of relative optimism for civil and political rights. The faultlines, weaknesses and limits of the human rights regime were never out of view, but a series of significant developments throughout the 1990s would collectively offer the promise of a more co-operative international order, with a particular version of human rights at its centre.
The other significant moment was the Tiananmen Square massacre in June 1989. This had implications far beyond Beijing, firmly establishing China on the wrong side of the freedom and democracy agenda of the West. The long-term international reaction to the massacre, including sanctions and a succession of annual draft resolutions at the UNCHR, pushed China into a defensive position, taking an increasingly dogmatic opposition to country-specific action in the UN human rights system. Though relatively mild, the first such resolution was, according to Rosemary Foot, ‘the first time a UN human rights institution had criticised a P5 member for its human rights violations’. China expended significant energy in countering the draft resolutions which followed each year and, with the help of allies, was able to ensure that all but one of them failed. It sought to portray the resolutions as confrontational and ‘anti-China’. According to one expert interviewed for this paper, China repeated this line so frequently that eventually it came to be used even by US diplomats. Foot argued that Western states’ resolve gradually dwindled, as they were unwilling to match the intensity of China’s counter-lobbying efforts, unable to overcome the bloc-voting dynamic and sensitive to China’s growing economic appeal. China also removed some of the heat from the situation by making a few concessions.
China also began to strengthen its own vision and discourse around human rights. In Foot’s words, the experience ‘prompted Beijing to promote discursively the idea of a “dialogue,” as opposed to confrontation, on human rights between equal, sovereign, states.’ In 1990, a speech by Tian Jin, a member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, emphasized what would subsequently become consistent themes: the historically contingent nature of rights; the precedence of collective rights over individual rights; the application of international standards only to issues of racism, colonialism and gross violations caused by foreign occupation and aggression; the principle of non-interference in all circumstances except for genocide and apartheid; and the idea of development as the key to achieving human rights. In 1991, the Chinese Communist Party (CCP) produced its first official white paper on the subject of human rights, widely promoted inside China but also made available in several non-Chinese languages. The white paper stated that ‘China sternly opposes any countries using human rights issues to promote their own values, ideologies, political standards, and developmental models’.
In this context, the universalism of human rights became one of the principal sources of disagreement at the 1993 World Conference on Human Rights in Vienna, Austria – the largest ever international gathering dedicated to the subject of human rights. In the lead-up to the conference, 34 Asian states issued the Bangkok Declaration which echoed several elements of China’s discourse. In particular, the declaration rejected the promotion of human rights through ‘confrontation and the imposition of incompatible values’. The US had no sympathy for this position, and Secretary of State Warren Christopher proclaimed to the conference that ‘we cannot let cultural relativism become the last refuge of repression’.
In 1993, the Paris Principles were adopted by UNGA, standardizing the responsibilities and operating methods of national human rights institutions. Then, in 1998, the Rome Statute was adopted, establishing the International Criminal Court (ICC) and building on the promise of an international system capable of delivering accountability beyond the national level. For the most powerful states, this tilted the balance too far from state sovereignty towards international accountability. Both the US and China voted against the Rome Statute. While the US and Russia did eventually sign the statute in 2000, both countries later signalled their intention not to ratify it.
Nevertheless, the 1990s cultivated a general sense that the eventual fulfilment of human rights, at least civil and political rights, could be within reach – despite horrific failures of the multilateral system in Rwanda and at Srebrenica. The idea was that progress would be achieved through the elucidation of human rights law and standards, with compliance supported and monitored by a growing number of institutions. The central weakness of the international human rights regime – the lack of any means of enforcement beyond the state – was mitigated somewhat by NGOs’ ‘naming and shaming’ tactics, which sought to undermine the credibility of states that violated human rights. In a post-Helsinki world, where the US and many of its allies had integrated human rights and democracy promotion in their foreign policy infrastructures, the fear of political or economic consequences for non-compliance with civil and political rights was not an abstract concern.
With 9/11, a great deal changed again. In the subsequent ‘war on terror’, the US committed gross violations of human rights in the name of protecting freedom and democracy – core components of the American way of life perceived to be under attack. US hypocrisy on human rights was now happening on a bigger stage, fortified with the rhetoric of moral purpose. The US became an innovator in perpetrating human rights abuses, with its creation of the Guantánamo Bay detention camp, its practice of extraordinary rendition, its drones programme and its justification of highly controversial interrogation tactics – all of which was underpinned by a resistance to accountability.
The conduct of the US and its close allies during the ‘war on terror’ dealt a severe blow to any claim they had to moral leadership in the world and demonstrated afresh how fragile the idea of universal rights was. As the old world order began to fracture, the idea of inevitable progress in realizing civil and political rights looked increasingly untenable.
A fragmented world
The war in Iraq, executed without UN Security Council (UNSC) backing, brought the frailty of the multilateral human rights system clearly into focus. The 2000s saw a shake-up of a system increasingly criticized as politicized, splintered and inadequate to the task of protecting and promoting human rights.
In 2003, UN secretary-general Kofi Annan scathingly addressed the UNCHR, saying:
The UNCHR, which had no criteria for membership, in some ways epitomized the human rights vision of universal progressive improvement which was disintegrating.
There began a series of innovations to bring about reform. Annan was pushing for a human rights body with a higher status in the UN system. As he told the UNCHR in 2005:
The 2005 World Summit at the UN endorsed the ambitious concept of a Responsibility to Protect (R2P), a mandate for humanitarian intervention to prevent mass atrocity crimes, which reflected the prevailing emphasis at that time on human protection. In 2006, UNGA passed a resolution to replace the UNCHR with a new, 47-member Human Rights Council (HRC), involving competitive elections which would take account of candidates’ performance on human rights. The same resolution established the Universal Periodic Review (UPR) system of peer reviews on human rights (now in its fourth cycle, and still with a 100 per cent participation rate).
For China, the process of establishing the HRC was an opportunity to pursue a more innocuous state-to-state system. China opposed the introduction of membership criteria, the participation of NGOs and the use of binding recommendations within the UPR system. It also sought to weaken the mandate of ‘special procedures’, among other things. China was an outlier in its strength of opposition to country resolutions, and came close to holding the entire process hostage to its demands, pulling back only at the last moment. In the end, it was not entirely successful in achieving its objectives, but the attempt left a mark. Traces can be found in the multiple references to dialogue and cooperation in the final resolution. The US was one of four countries to vote against the resolution, arguing that the HRC was not designed in a way that would enable the worst human rights offenders to be excluded and that the politicization of the UNCHR would continue.
In April 2022, UNGA passed a notable resolution creating a standing mandate for a debate whenever a veto is cast in the UNSC.
Worldwide upheaval in the following years had significant implications for human rights. Austerity measures implemented after the financial crash of 2008 delivered economic hardship around the world, but initially there was little pushback on human rights grounds. In 2010–11, the Arab Spring provided a brief celebration of ‘people power’ before expressions of international solidarity gave way to pragmatism. In the struggle between autocratic stability and sectarianism, the autocrats largely prevailed, often with US backing – although not in Libya, where UNSC resolution 1973 authorized an international military response to the unfolding civil war. Civil war in Syria drew in regional and global powers and became intractable, with the UNSC deadlocked. Multilateral efforts in Syria, and later in Yemen, were however limited to containment of the conflict and managing the resultant humanitarian crises. In April 2022, UNGA passed a notable resolution creating a standing mandate for a debate whenever a veto is cast in the UNSC. This constituted an important and innovative rebuke to persistent UNSC failure and expressed the deep frustration of many states regarding the abuse of veto powers.
Accountability remained strikingly elusive. Afghanistan was an important example of this, where the lack of consideration for accountability in the 2001 Bonn Agreement (which laid the foundations for a post-Taliban Afghanistan) set a tone for the next two decades: without accountability, all the human rights gains were at risk of unravelling. One interviewee recalled how hopes drained away from an ICC process dogged by delays and the refusal of the US to countenance any investigation of its military personnel. Meanwhile, across Africa, the ICC continued to suffer a credibility deficit. In the words of Makau Mutua, it risked ‘turn[ing] justice into a tool of the West against the South, and especially Africa’. As an interviewee put it, ‘Africans have given up on it as a serious body since it is capable of nothing more than holding the vanquished accountable.’ Even in the HRC, Sri Lanka succeeded for years in evading censure for the conduct of government forces at the end of its civil war in 2009 – which involved the death of 40,000 civilians – let alone any serious effort at international justice. Today, Russia’s invasion of Ukraine is the subject of multiple investigations, including by the UN and the ICC, but it remains to be seen whether those investigations are able to deliver accountability. UN mechanisms on Ethiopia and Myanmar, among others, face the same question.
Where accountability has been lacking, there has been an attempt within the multilateral system to learn lessons, but even these efforts have been limited. UN failings in Sri Lanka were subjected to some scrutiny, and a damning report commissioned by secretary-general Ban Ki-moon condemned a ‘systemic failure’. Ban responded with a new initiative, Rights Up Front (later known as Human Rights Up Front), to place human rights considerations at the heart of UN operations in any country. But this was regarded by some member states as an intrusion on sovereignty, and was quietly dropped by Ban’s successor, António Guterres. In 2014, the trend of deadlock and inaction in the face of conflict without regard either for the UN Charter or for human rights was tested further by Russia’s annexation of Crimea. This met with an international response of little more than resignation in addition to some unilateral sanctions. Viewed from the perspective of 2023, following Russia’s full-scale invasion of Ukraine, this was a stark failure indeed.
Meanwhile, from 2013, China began to emerge as a more assertive power on the world stage under the leadership of Xi Jinping. At this stage, China’s foreign policy focused largely on its ambitious international investment programme now known as the Belt and Road Initiative (BRI). It included an ambition to project huàyǔ quán (usually translated as ‘discourse power’ or ‘the right to speak’), which, as Toni Friedman has explained, is ‘closely associated with Chinese government and media discourse about efforts to “tell China’s story well”’. Although there was little change in the substance of China’s position on human rights, it now began to take a more active role in disseminating ideas, including through efforts to position itself as a leader of the Global South. One of the ways it did so was by hosting the 2017 South–South Human Rights Forum. The resulting Beijing Declaration echoed all the main themes of China’s human rights discourse, including an emphasis on differentiated ‘national conditions’, on the rights to subsistence and development as ‘the primary basic human rights’, and on the principle of ‘non-interference’. It echoed favoured CCP phrases such as ‘community of shared future for humankind’, ‘win-win cooperation’, and ‘the all-round development of human beings’.
If old assumptions persisted that the US would continue to underwrite the human rights system in some sense, it was becoming increasingly clear that such perceptions were unfounded. The evident hypocrisies of the US’s execution of the ‘war on terror’ had continued under President Barack Obama, such as with the increased use of drone strikes and continued resistance to accountability for US forces. The same was true with the Arab Spring and the gap between initial supportive rhetoric and eventual action – while China used the moment to position itself as a leader of states asserting their authority to enforce public order. The NATO-led intervention in Libya, which involved overriding African Union (AU) objections and rejecting the AU’s proposed mediation plan, contributed further to a sense among African countries that the multilateral system served largely as a vehicle for Global North interests. The absence of any African countries from the P5 perpetually underlines this point. As one interviewee explained:
After the experience in Libya, the idea that the US might still intervene militarily on human rights or humanitarian grounds looked implausible. In tandem, the concept of R2P was rapidly looking anachronistic, and it was barely used after 2013.
While the US has long vacillated in its engagement with the human rights system, it embarked on a particularly dramatic repudiation of human rights under the presidency of Donald Trump. In 2018, the US withdrew from the HRC, one day after the UN high commissioner for human rights, Zeid Ra’ad Al Hussein, had criticized the Trump administration’s policy of separating undocumented families at the border. The US promptly cut its funding for the UN by the amount that would normally flow to the human rights bodies. Although, under President Joe Biden, the US has since re-entered the HRC, multiple interviewees stressed that the pattern of disengagement and re-engagement has been very disruptive and has left the impression of the US as an unreliable partner on human rights.
It was not only in the US where the nexus of democracy and human rights was looking increasingly shaky. A growing number of countries were electing leaders willing to set themselves openly against universal human rights in words, actions or both. One of the most prominent examples was the serious human rights deterioration in India after the election of Narendra Modi as prime minister. Against this background, the human rights framework has been weakened by fresh efforts at redefining human rights. Indian home minister Amit Shah used a speech to the National Human Rights Commission in 2019 to call for ‘redefining human rights violations with the Indian perspective’. In a similar vein, the Trump administration in the US tasked a new Commission on Unalienable Rights from 2019–20 with preparing an advisory report ‘grounded in our nation’s founding principles and the 1948 Universal Declaration of Human Rights’ (although notably not the body of international human rights law). In Katharine Young’s analysis, the commission effectively weaponized human rights against advocates of women’s rights, LGBTIQ+ rights and social justice in general, through its selectivity and omissions.
Human rights in the UN system
Meanwhile, the political space for human rights within the UN system remains constricted. One aspect of this is the funding situation: although the human rights pillar is notionally equal to the other two pillars of the UN (peace and security, and development), states continue to allocate it less than 7 per cent of the UN’s regular budget. This pushes OHCHR, which receives only around 3 per cent of the UN budget, into an increasing dependence on voluntary contributions to support an ever-expanding set of mandates from the HRC, while also maintaining its core activities. More than 60 per cent of the OHCHR budget is now provided in additional contributions by member states and the private sector – which could leave OHCHR vulnerable to accusations of improper political influence.
The signals on human rights from the most influential elements of the UN in New York have not been strong. In the UNSC, as one interviewee explained, China and Russia have shown greater willingness to raise objections to the use of human rights-related language and to contest human rights as a proper topic for discussion. In 2021, Guterres published a vision paper, ‘Our Common Agenda’, which presented human rights as one of several ‘blueprints for a better world’ alongside the Sustainable Development Goals (SDGs) and the Paris Agreement on climate change – both of which rely principally on voluntary action by states. Such comparisons undermine the standing of human rights, which is grounded in law rather than voluntary action, and diminish the credibility of the UN secretariat as a guardian of those rights. At a time when the human rights system is widely acknowledged to be under sustained assault, Guterres’s call for a ‘renewed social contract, anchored in a comprehensive approach to human rights’ does not constitute a strident defence.
