When Defending Liberty, Less Is More
Former Venezuelan President Hugo
Chavez addresses the UN General Assembly in 2009 (Lucas Jackson / Courtesy Reuters)
If human rights were a currency, its value
would be in free fall, thanks to a gross inflation in the number of human rights
treaties and nonbinding international instruments adopted by international
organizations over the last several decades. These days, this currency is
sometimes more likely to buy cover for dictatorships than protection for
citizens. Human rights once enshrined the most basic principles of human freedom
and dignity; today, they can include anything from the right to international
solidarity to the right to peace.
Consider just how enormous the body of binding
human rights law has become. The Freedom Rights Project, a research group that
we co-founded, counts a full 64 human-rights-related agreements under the
auspices of the United Nations and the Council of Europe. A member state of both
of these organizations that has ratified all these agreements would have to
comply with 1,377 human rights provisions (although some of these may be
technical rather than substantive). Add to this the hundreds of non-treaty
instruments, such as the resolutions of the UN General Assembly and Human Rights
Council (HRC). The aggregate body of human rights law now has all the
accessibility of a tax code.
Supporters of human rights should worry about
this explosion of regulation. If people are to demand human rights, then they
must first be able to understand them -- a tall order given the current
bureaucratic tangle of administrative regulation.
Compounding this problem is the adoption of
conflicting norms on particular human rights. For example, the 1948 Universal
Declaration of Human Rights states, without qualification, that “everyone has
the right to freedom of opinion and expression.” Yet during the Cold War, at the
instigation of communist states, conventions such as the International Covenant
on Civil and Political Rights (ICCPR), which is still at the heart of the
international human rights system, prohibited certain forms of “hate speech,”
with no clear guidelines on how to resolve the inherent conflict with freedom of
expression. The consequence of this legal and moral confusion is that human
rights are now sometimes invoked to restrict rather than protect free speech.
Several UN member states, including Egypt and Pakistan, insist that derogatory
statements about religion constitute advocacy of religious hatred, which is
prohibited under the ICCPR.
What explains the proliferation of human
rights? The process has been driven partly by well-meaning lobbies for special
interest groups that are looking for the trump card of having their cause
recognized as a human rights issue. International human rights advocates, some
national governments, and technocrats in international organizations seeking
larger bureaucratic domains have also played a role.
But there is also a darker agenda behind the
expansion of human rights law. Put simply, illiberal states have sought to
stretch human rights law to give themselves room to hide behind it. They have
even used it to mount political attacks against liberal states. A critical look
at the UN’s often dysfunctional HRC is illustrative. Although it cannot adopt
treaties or pass binding resolutions, the HRC is an important forum for
developing new human rights standards and shaping the international human rights
discourse. Judged by respect for human rights, its membership covers a wide
spectrum, from democracies to tyrannies.
States ranked “free” in Freedom
House’s index tend to take a robust approach to human rights centered on
what are called first-generation rights, such as free speech and freedom from
torture. Although these countries are not necessarily opposed to what are called
second-generation rights, which include quality of life issues such as housing
and health, they are frequently skeptical about what are referred to as
third-generation rights. This latter category encompasses ill-defined rights
that protect collective rather than individual interests and includes the right
to development, the right to international solidarity, and the right to
peace.
In contrast, “partly free” and “not free”
states have become the main proponents of third generation rights. For most of
them, of course, these commitments in practice mean very little, since countries
that do not adhere to the rule of law at home rarely take international legal
obligations seriously. But by presenting themselves as the champions of these
new human rights, they seek to knock liberal states off the moral high ground
and shore up their own political legitimacy.
Consider what happened at the most recent
session of the HRC in June, when Cuba successfully sponsored resolutions on
third-generation rights in the form of two resolutions: Human Rights and
International Solidarity and Promotion of the Right to Peace. The former
resolution, in part aimed at making development aid a “human right” for states,
passed with 32 votes in favor and 15 against. Of the 32 states in favor, only
ten were “free” (none of them Western), 15 were “partly free,” and seven,
including Ethiopia and Mauritania, were “not free.” With the exception of
“partly free” Moldova, the 15 countries that voted against were all “free”
(European states joined by the United States, Japan, and South Korea).
A similar process plays out at the Universal
Periodic Review, a human rights exam that all member states at the UN have
to undergo every four and a half years. In 2009, no less a human rights abuser
than North Korea received praise from Cuba, Iran, Russia, and Syria for working
“to consolidate a socialist and just society, which guarantees equality and
social justice.” In May 2013 North Korea, and Sudan in turn encouraged Cuba to
“work through the UN mechanism in progressive development of the third
generation of human rights, particularly the value of international
solidarity.”
The expanded and diluted notion of human
rights allows illiberal states to change the focus from core freedoms to vague
and conceptually unclear rights that place no concrete obligations on states.
Enabled by such rhetoric, no human rights violation can stand scrutiny on its
own merits. Instead, human rights violations are relativized -- intellectually
dismembered and discarded when it is politically expedient. In this world, cuts
in development aid can be labeled human rights violations just like torture in
North Korea. Crucially, this unprincipled politics of human rights helps
authoritarian states deflect criticism. In 2007, Cuba, which has one of the
worst human rights records in the Western Hemisphere, succeeded in persuading a
majority of HRC members to axe the specific mandate for monitoring its own human
rights record. The praise authoritarian states shower on one another for
supposedly upholding new, vague and abstract rights are therefore not just empty
rhetoric but can produce real political gains.
Unfortunately, much of the human rights
community has not only shied away from expressing qualms about rights
proliferation, it has often led the process. But this approach has not helped
advance the core freedoms that make the difference between liberal and
non-liberal states: According to Freedom House, global respect for basic civil
and political rights is in decline for
the seventh consecutive year. Of course, it is exactly those basic rights
that non-free states want to neuter. When everything can be defined as a human
right, the premium on violating such rights is cheap. To raise the stock and
ensure the effectiveness of human rights, their defenders need to acknowledge
that less is often more.
Respect for human rights around the world
would likely be stronger if human rights law had stuck to a narrower and more
clearly defined group of rights. The efforts and resources of human rights
advocates and international institutions could have been much more targeted.
Greater focus might have also resulted in better monitoring and more robust
enforcement. Illiberal states would not have been able to lay any claim to human
rights -- let alone invoke them to delegitimize liberal states. Liberal states
might have also concentrated their efforts on human rights institutions that,
unlike the HRC, actually offer prospects of improvement through reform. The
Strasbourg-based European Court of Human Rights, for example, partly through its
own interpretive overreach, which has seen it expand existing rights and invent
new ones, is losing credibility in some important member states such as the
United Kingdom. European states have not done enough to address the crisis of
Europe’s oldest human rights institution.
Instead of rushing to respond to the human
rights flavor of the month -- be it protecting the elderly or defending the
peasants -- liberal democracies should support institutions and treaties that
embody the ideals that inspired the human rights movement in the first
place.
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