The Danger of Human Rights Proliferation

When Defending Liberty, Less Is More

Jacob Mchangama and Guglielmo Verdirame

 

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.