The International Human Rights Movement: A History
By Aryeh Neier
(Princeton University Press, 379 pp., $35)
The modern idea of state sovereignty was created in an effort to bring peace to Europe. In the group of treaties known as the Peace of Westphalia, adopted in 1648, the continent’s most powerful rulers agreed that each could determine the established religion in his territory without interference from the others. Over time this agreement developed into the norm that no outsider should intervene in how a sovereign treated his own subjects. As late as World War II, as Aryeh Neier recounts in his superb history of the human rights movement, there was no basis in international law for the outside world to intercede—had it been inclined to—in Germany’s treatment of its Jewish population, because this was a matter “involving the relations between a government and its own nationals.” It was to carve out such extreme situations as an exception to the principle of sovereignty that the Polish-Jewish jurist Raphael Lemkin created the neologism “genocide” and lobbied for the adoption of what became the first modern human rights treaty, the Convention on the Prevention and Punishment of the Crime of Genocide, which came into force in 1951.
Against this background, it was a revolution in international affairs when in 1945 the U.N. Charter—which is a treaty, acceded to by all states that join the world body—adopted the principle that “the United Nations shall promote ... universal respect for, and observance of, human rights and fundamental freedoms ...” and committed its members to “joint and separate action” for the achievement of these goals. These few words blurred the Westphalian bright line between international commitments and internal affairs. To be sure, the Charter also included a countervailing provision that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state,” leaving unstated what these matters might be.
In 1948, the U.N. General Assembly spelled out the rights the United Nations would promote by adopting the Universal Declaration of Human Rights (UDHR), with the assenting votes of all but eight of the body’s then fifty-eight members. (The Soviet Union, five of its allies, Saudi Arabia, and South Africa abstained, and two countries were absent.) Most international law experts consider the UDHR to have achieved the status of “customary international law,” meaning that it is legally binding on all states, even those that did not vote for it or that did not exist when it was adopted.
From this root grew what is today a complex body of international human rights law. The website of the U.N. High Commissioner for Human Rights lists about a hundred conventions, protocols, and statutes (all different forms of treaty) by which sovereign states undertake commitments to one another about how they will—and especially, will not—treat their own citizens. It also lists a number of declarations, principles, rules, and other normative enactments that are not treaties but are considered to have the force either of customary law or of what is called “soft law.” Most of the treaties have been joined by most states in the international system, although the United States has famously refused to accede to some of the most important of them, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Rome Statute, which created the International Criminal Court (ICC).
Some scholars of international law—such as John Bolton, George W. Bush’s U.N. ambassador, and others labeled “new sovereigntists”—believe that international law is not really law, chiefly for two reasons. First, there is no global sovereign to enforce it: states do not have to comply when they do not want to comply. Second, in the case of human rights law in particular, international law purports to regulate a relationship, that of a state with its citizens, that can legitimately be regulated only by that state’s own constitution—especially in the United States, which recognizes no higher authority than the Constitution. To objections such as these the late legal scholar Louis Henkin famously rejoined, “International law is law like other law, prompting order, guiding, restraining, regulating behavior. States, the principal addressees of international law, treat it as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the consequences of violation.” If it quacks like law, it’s law.
Yet Henkin and others added that international human rights law is in one crucial respect different from other international law. Although it takes the same form—commitments by states to each other—its “beneficiaries” are different from those of international trade law or international arms control law: they are not the other states that are parties to the treaty, but their subjects. This creates a paradoxical relationship between international human rights and sovereignty. Just as with any other part of international law, sovereigns create the law by exercising their right to enter into mutual commitments. Thus the common complaint of American critics such as Bolton, and of regimes subjected to human rights criticism, such as those in China and the Sudan, that the international human rights system infringes sovereignty does not survive scrutiny. But unlike any other form of international law, sovereigns enter here into a commitment to bind their hands in their domestic behavior toward their own subjects. International human rights law is uniquely, as the title of a recent book by Ruti G. Teitel describes it, “humanity’s law.”
Whether states actually implement these commitments has become the subject of a cottage industry in political science and international legal studies. One view is that states accede to human rights treaties either because they already comply with their provisions or because they are such pariahs that they need to sign a treaty or two to improve their reputations. Besides, states can file “reservations, understandings, and declarations” (RUDs) when they accede to most human rights treaties, declaring either their own interpretations of certain treaty provisions or their intention to exempt themselves from certain articles. As a result, not much changes in the actual behavior of states. A second view is that treaties, along with customary international law and soft law, provide an opening wedge that global civil society can use to push a regime toward greater compliance with its international legal obligations.
Neier’s account provides many vivid and convincing examples of how this works. Although he writes here with a historian’s detachment, he was a witness to, and a participant in, many of the events he describes, and gave a more personal account of some of them in a previous book, called Taking Liberties: Four Decades in the Struggle for Rights. Neier has held three seminal posts in the rights movement. From 1963 to 1978 he worked for the American Civil Liberties Union, in the last eight years as executive director. In this capacity he broadened the organization’s mandate to include prisoners’ rights, women’s rights, and the rights of the institutionalized mentally ill, among other issues, and took the controversial decision to defend American Nazis who wished to march in Skokie, Illinois. From 1978 to 1993, he served as one of the founders, and for the last twelve years as executive director, of what became Human Rights Watch, creating that formidable institution’s signature methodology of impeccable research, apodictic declarations of what international law requires, sophisticated media relations, and hard-edged policy lobbying.
Under his leadership Human Rights Watch pioneered in several areas. One was to link up international human rights law with what had previously been seen as a separate field, international humanitarian law (the laws of war), holding responsible both governments and rebel movements for violations such as attacks on civilians. Another innovation was to promote the creation of a body of international criminal law and the institutions to enforce it (like the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court), which seeks to hold individuals criminally accountable for major rights violations committed while serving as government officials or military officers. Finally, from 1993 until his retirement earlier this year, Neier served as founding president of the organization now called the Open Society Foundations (OSF), which has used funds provided by George Soros to contribute more than any other single organization to the development of the global social movement that Neier describes in his book.
In all three phases of his career Neier forced governments to implement rights. In the ACLU phase, one of the most effective methods was impact litigation, choosing cases with favorable sets of facts to obtain court rulings that, in the American common law system, had precedential effect and thus changed national policy. With the help of funding from the Open Society Foundations, rights movements in other countries have enjoyed increasing success with the same technique even in civil law systems, where court decisions do not invalidate legislation or bind other courts but can with the help of the media create a decisive change in the climate of opinion.
Neier’s chapter on Human Rights Watch—alone worth the price of the volume—tells how the new, small organization played political hardball to help force the Reagan administration and its client dictatorships in Argentina, Chile, El Salvador, Nicaragua, and Guatemala to change course. Another chapter tells the story of Amnesty International, and a third takes a sample of several dozen out of what by one estimate is around ten thousand human rights organizations that now exist around the world, many of them small and local. Although he is careful to say that one can never quantify the precise contribution of human rights work to such historic events as the fall of communism in Eastern Europe and the Soviet Union or the end of apartheid in South Africa—or for that matter to small advances in the treatment of women, sexual minorities, the disabled, and others in specific countries, cities, or villages—his narrative leaves no doubt that the international human rights movement has often been a significant factor in changing the behavior of states.
It is not treaties, however, that change state behavior. It is the use of those treaties by a global movement that is politically agile, opportunistic, and even ruthless. That is why Neier’s account foregrounds the movement rather than the law. At the same time, however, the global movement could not have achieved what it has without the existence of international human rights law and international humanitarian law to serve as tools to attack its targets. Although in recent decades states have not ceased to violate rights, they have no longer been able to think of justifications for doing so that are widely accepted as valid. International human rights and humanitarian law have increasingly become what Ronald Dworkin called “trumps.”
This record of success explains why the advocates of so many causes have tried to expand or to reshape human rights norms so that they cover the claims they wish to promote. Neier does not say much about this process, but it is an important part of the story. International human rights law has become not just a passive tool of activism, but also itself a dynamic battleground. Pushed forward by activists, much of the legal regime is quite new. Recent normative enactments include the CEDAW (1981), the Declaration on the Right to Development (1986), the Convention against Torture (1987), the CRC (1990), the Rome Statute (2002), the Declaration on the Rights of Indigenous Peoples (2007), the Convention on the Rights of Persons with Disabilities (2008), and the U.N. Guiding Principles on Business and Human Rights (2011). Although the royal road to making human rights normative is to get the states to agree to a treaty—as in the cases of the CEDAW, the CRC, and the Rome Statute—the normative envelope can also be expanded by getting the U.N. General Assembly to adopt a declaration, by getting a U.N. world conference to adopt an outcome document or “program of action,” by getting one of the U.N. treaty bodies (committees of experts set up by ten of the main human rights treaties to receive states’ reports about their implementation of the treaty, to interpret the treaty, and to receive complaints about violations of the treaty) to issue a “general recommendation,” by getting one of the special rapporteurs or other “thematic mechanisms” of the U.N. Human Rights Council to issue a report, by having a “Special Representative of the Secretary General” carry out consultations, and even by holding a meeting of experts who are not connected with governments or the U.N. to issue a “Draft Declaration of Principles.”
These efforts are ambitious, often revolutionary. The CEDAW—the Convention on the Elimination of All Forms of Discrimination Against Women, acceded to by all states except Iran, Palau, Somalia, Sudan, South Sudan, Tonga, and the United States—commits its states party “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”—that is, it enlists the governments in a fight against some of the fundamental values of the societies that they govern. The relevant treaty body has interpreted the CEDAW to require states to protect women’s right to refuse sex with their husbands, to provide access to birth control and abortions, to require husbands to share household tasks, and to combat pornography, among other measures. The CRC provides for children’s individual freedoms of thought, conscience, religion, expression, and association, and the right to privacy, exercised in the child’s “best interests” independently of the interests of the family. The Program of Action of the U.N. Population Conference in 1994 codified a right to a “satisfying and safe sex life.” The Draft Declaration of Principles on Human Rights and the Environment in 1994 declared that “all persons have the right to a secure, healthy and ecologically sound environment.” The U.N. World Summit Outcome Document in 2005 identified a responsibility of the world community to intervene, implicitly even militarily, “to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (the so-called “responsibility to protect” or R2P). The U.N. Guiding Principles on Business and Human Rights ask enterprises to conduct a “human rights due-diligence process.” There is even the view that a basic principle of human rights—not to create suffering—should also apply to animals.
However laudable, and they certainly are laudable, these norms run far ahead of mainstream sentiment in most— probably all—countries. Critics such as Bolton are right to say that advocates often try to use international human rights law to establish norms that they could not get adopted by democratic processes in their own societies. But this is precisely what makes international human rights law such an attractive target for activism, and an important node of development in the changing world system.
NEIER HAS BEEN behind some of this expansion of the scope of international human rights law, such as the promotion of women’s human rights and individual criminal accountability for major rights violations. But to preserve the quality of rights as trumps he has always argued that only civil and political rights can be considered real human rights, while two other categories—conventionally called economic, social, and cultural rights and collective rights—cannot. As he acknowledges, his is a minority view in the movement. He argues controversially that civil and political rights say what the government cannot do (torture, restrict speech, control religion); that they are absolute; and that for these two reasons you can take them to court and win. He even goes so far as to criticize the International Covenant on Civil and Political Rights for compromising the trump character of civil and political rights by allowing some of them to be derogated, or suspended, in times of emergency.
So-called second- and third-generation rights, by contrast, describe things that the government should do (provide work, health, education, leisure, promote the vitality of minority cultures, and so on). But since the government has to do many such things, Neier argues, and since they all cost money, only the political process can legitimately determine how much of one good thing is worth how much tradeoff of another good thing. Hence such rights are not—or at least should not be—justiciable. (But discrimination in access to such benefits, he clarifies, would violate the civil right to nondiscrimination and would be justiciable.) It may be partly because of his disdain for some of the newer aspirant rights that Neier does not cover them in his book, although to be sure the field is so large that there would be not be enough space to do so if he tried.
In his argument against expanding rights, Neier overlaps with critics such as Bolton on the point that rights are not legitimate when, in Neier’s passionate phrase, they “carve the heart out of the democratic process.” But he limits this criticism to a subset of rights, while Bolton applies it across the board. The answer to both of them is surely still the one that Henkin gave: that human rights in practice are whatever advocates have persuaded most of the international community to accept as normatively binding.
HUMAN RIGHTS have become such a familiar part of the international landscape that it is easy to forget how new most of them are. To be sure, the U.N. Charter and the UDHR were not the first international normative enactments to address how states should treat their citizens. Even the Peace of Westphalia provided for sovereigns to respect the freedom of belief of certain religious minorities living in their territories. The new states that emerged out of the wreck of the Hapsburg and Ottoman Empires at the end of World War I were required to sign treaties agreeing to protect the rights of minorities before they could enter the League of Nations. Nor were the ideas on which the U.N. Charter, the UDHR, and human rights treaty law founded without historical precedent. Neier traces the roots of the human rights idea to the natural law tradition exemplified by Hugo Grotius and from there via the English dissenters of the seventeenth century to the anti-slavery and women’s rights movements of the nineteenth and early twentieth centuries. (Paul Gordon Lauren, in his classic The Evolution of International Human Rights: Visions Seen, traces the roots still further back in the West, and into other civilizations as well.)
But these precursors were not yet the modern idea of human rights, for what Neier identifies as two interlinked reasons. Conceptually, the rights pursued by advocates before the second half of the twentieth century were not universal. The rights of slaves, child laborers, and women were the rights of particular groups of oppressed or endangered people; the rights established by the French Revolution were those only of “man and the citizen.” And for this reason, organizationally, the social movements that promoted them were not sustainable; they faded away when their purposes were achieved. The idea of universal human rights made possible the growth of a sustainable global social movement to promote such rights.
Yet this did not happen immediately. Except for the founding of Amnesty International in 1961 and the adoption of the two International Covenants in 1966, there was little development in the international human rights regime until the late 1970s. Since then there has been an explosion of normative enactments (as indicated only fractionally above) and an explosion of the global social movement (to a significant extent guided and funded by Neier through the OSF). Human rights has been mainstreamed into American foreign policy, with each president, to be sure, framing it in a different way (Carter as human rights, Reagan as democracy promotion, George W. Bush as a “Freedom Agenda,” and so on). Human rights became a pillar of European Union foreign policy with the adoption of the Common Foreign and Security Policy (CFSP) in 1993. The family of U.N. institutions devoted to human rights has grown—the Office of the High Commissioner for Human Rights was established as recently as 1993. The European Court of Human Rights and the Inter-American Court of Human Rights were established in 1953 and 1979 respectively, but both experienced dramatic increases in their dockets starting in the late 1990s. The African Court of Human and People’s Rights was established in 2004. “Humanitarian intervention”—justified if not necessarily motivated by human rights priorities—has become an increasingly common feature of international politics.
WHY? Approaching the question as a participant-cum-historian, Neier emphasizes a series of political events that began with the Helsinki Accords of 1975. When Gerald Ford and Leonid Brezhnev met to finalize the national boundaries of Europe—with the United States, in effect, abandoning its policy to “roll back” communism in recognition of what seemed to be the military strength and political stability of the Soviet empire—they included a pro forma “Basket III” of human rights commitments as a kind of fig leaf. Unexpectedly, dissidents in Moscow led by Yuri Orlov began to treat these provisions as if they were serious. The movement spread to Poland and Czechoslovakia, among other places. A small support group took shape in New York called Helsinki Watch. To balance its work in the Soviet bloc, it began to attend to infractions by authoritarian American allies, leading to its David-and-Goliath confrontations with the Reagan administration. Congress for the first time began to adopt legislation placing human rights conditions on aid and trade. Media and foundations took an interest. And so the movement grew.
This is history written at the ground level, consisting of contingencies, confrontations, and coincidences. Looking back, however, one wonders what structural conditions made it all possible. Why did the human rights regime start expanding at the time that it did, not before and not after, and why has it kept expanding until today? Only by answering this question can we assess whether the human rights movement will continue to expand, or stagnate, or perhaps even decline.
Globalization must be a part of the answer. It entered a new phase of intensity in the 1970s, with world merchandise exports nearly quintupling between 1970 and 2000 and foreign direct investment increasing by about four times. As interdependence deepened, tragedies that would previously have seemed remote seemed closer to hand, and there were real possibilities—and hence responsibilities—to exert influence. Television news was a relatively new phenomenon—Huntley-Brinkley and Cronkite did not go to half-hour formats until 1963—and moving pictures in the living room made global suffering more visible. The rising middle and professional classes in the third world demanded more from their governments and had the capacity to connect with international supporters, with whom they found a common language in the idea of human rights. Underlying all of this, as Foucault, Talal Asad, Elaine Scarry, and others have argued, were changes evolving since the start of the modern era in concepts of the human being, pain, pleasure, subjectivity, and the value and meaning of life.
What emerges above all from Neier’s account, however, is the importance of politics. Human rights were created under American dominance after World War II in order to consolidate and to extend American influence. Until the mid-1970s their growth was blocked by a Cold War stalemate between the two camps. But Carter revived the American interest in human rights in part to rally the country behind the need to remain engaged in the world after the defeat in Vietnam. Reagan used his democracy initiative to push back against an assertive Soviet Union. Human rights and democracy became a seeming juggernaut with the U.S.-aided “third wave” of democratic transitions that started in Portugal in 1974 and spread through southern Europe, Latin America, Asia, the socialist world, and Africa, bringing the number of democracies from thirty-nine in 1974 to 121 in 2006. Europe also played a role: the EU used human rights as part of a low-cost values diplomacy that sought to reduce turmoil in the zones of instability that abutted it to the south and east. If the victims of this push—dictators such as Muammar Gaddafi or Charles Taylor—might wish to argue that human rights is a political tool created by the West to make the world safer for itself, they would not be far off the mark.
There is only a superficial paradox in Americans’ unwillingness to apply human rights norms to ourselves—a puzzle that the human rights field labels “American exceptionalism.” For one thing, as Neier illustrates with his arguments against second- and third-generation rights, we are as much committed to democracy as to human rights—the two overlap but are not the same—and many of us do not want international striped-pants norm-makers telling us what we have to do. Second, we have a better chance of getting our civil and political rights protected by appealing to our Constitution than to international norms—hence the American preference for “civil” over “human” rights (and the conflation of the two when the term “human rights” is used in an American context, as in the title of the New York City Human Rights Commission). And most importantly, we are powerful. We can use human rights to influence others without having to let them use it to influence us. As the Athenians told the Melians twenty-four centuries ago, “the strong do what they have the power to do and the weak accept what they have to accept.”
But now that American influence in the world is, according to many accounts, declining—at least relatively, with the rise of China, Russia, India, Brazil, and “the rest”—this ambivalent American attitude emerges as one of several reasons why we must view the future of the international human rights regime as uncertain. At the end of his book Neier takes stock of the movement’s achievements over the course of four decades. Human rights has become a new world ideology, even a kind of secular religion. Even since his book went to press new achievements have mounted up, such as the liberalizing reforms in Myanmar, and the unprecedented commitment by one sovereign state (China no less) to another (the United States) to treat one of its own citizens in a certain way (that is, to give a passport to the blind rights lawyer Chen Guangcheng, preserve his right to reenter China, and investigate the wrongs that were done to him—although this last commitment has not been followed up so far). Neier certainly has grounds for his conclusion: “It can be said with confidence that certain achievements of the international human rights movement during the last three-and-a-half decades will endure and will help make it possible for the movement to continue to play an influential role.”
YET MANY OF Neier’s own insights are reasons for concern. Human rights have enemies. At home, they include the new sovereigntists who question the legitimacy of international law, cultural relativists who believe that other people do not want the same rights that we want, cultural conservatives who believe that even we should not have some of the rights that advocates have labeled universal (such as equality for women and sexual minorities), and those who believe that national security trumps due process and justifies torture.
Abroad, the challengers to human rights include powerful authoritarian governments such as those of China and Russia, which exert increasing influence on the way newly emerging norms are defined for such issues as the proper bounds of freedom of information on the Internet and the right of civil society organizations to receive financial support from abroad. Women’s human rights continue, as always, to be under attack in fundamentalist communities not only in the Muslim world but also in Christian, Buddhist, Hindu, Jewish, and other societies. Advances in communications technology empower not only citizens but also political police. New weapons such as drones raise new challenges to the laws of war. Even the human rights movement’s friends can hurt it, when they stretch the norms too far and reduce the sacrosanct quality of the original idea, which in the end is its most important asset.
Nor is this all. Economic crisis pushes people away from altruism and toward selfishness. Climate change intensifies the struggles over land and water that make both sides believe that they are fighting for their lives with their backs to the wall. The more multipolar international system that seems to be emerging strengthens the appeal of the live-and-let-live Westphalian norms that—as in Europe centuries ago—look to many people like a way to diminish conflict in a system of power balance.
At such a moment, complacency built on past achievements is dangerous. As the United States and Europe pull back, Neier argues, “for the foreseeable future, it is the nongovernmental movement that has assumed and must assume leadership as the voice of human rights.” What is at stake remains what it was in 1948: in the words of the UDHR, “freedom, justice and peace in the world,” and even more importantly, the simple yet brilliant idea that these global goals must be founded on the micro-level “dignity and worth of the human person.” The more nations become interdependent, the more important norms are as a form of power. The continued pursuit of human rights is not idealism, it is realism. Three and a half decades of success are a strong beginning, but they provide no guarantee of future growth, or of survival. The struggle for human rights has only begun.
Andrew J. Nathan is Class of 1919 professor of political science at Columbia University and is chair of the steering committee of Columbia’s Institute for the Study of Human Rights. This article appeared in the December 6, 2012 issue of the magazine under the headline “The New Ideology.”