Human Rights at Risk: Global Governance, American Power, and the Future of Dignity 9781978828469

Table of contents :
Contents
Part 1 Introduction
1 The Global Human Rights Regime: Risks and Contestations
Part 2 Effectiveness of International Human Rights Institutions
2 Transparency, Accountability, and Legitimacy within the UN Universal Periodic Review
3 After Obama: The African Group at the UN Human Rights Council
Part 3 Thematic Blind Spots in International Human Rights
4 Consensus and Human Rights Politics: The Case of ASEAN Intergovernmental Commission on Human Rights
5 Skewed Vision: Human Rights in War through the Eyes in Peace
6 Who Are the Victims of Crimes against Cultural Heritage?
7 Challenging the Legal Boundaries of Genocide: The War on Drugs in the Philippines
Part 4 The United States and Human Rights Challenges
8 Human Rights at Risk in the Era of Trump and American Decline
9 The Tyranny of Exceptionalism: How the United States Rejects Universal Human Rights
Part 5 Rethinking the Future of Human Rights
10 Natural Law and the Future of Human Rights
11 Yesterday, Today, and Tomorrow: Thoughts on Global Human Rights in the Twenty-First Century
12 Risks and Emancipatory Rights
Acknowledgments
Notes on Contributors
Index

Citation preview

­Human Rights at Risk

­Human Rights at Risk Global Governance, American Power, and the ­Future of Dignity

EDITED BY SALVADOR SANTINO F. REGILME JR. AND IRENE HADIPRAYITNO

Rutgers University Press New Brunswick, Camden, and Newark, New Jersey, and London

 Library of Congress Cataloging-in-Publication Data Names: Regilme, Salvador Santino F., Jr., editor. | Hadiprayitno, Irene, editor. Title: Human rights at risk : global governance, American power, and the future of dignity / edited by Salvador Santino F. Regilme Jr. and Irene Hadiprayitno Description: First Edition. | New Brunswick, NJ : Rutgers University Press, [2022] | Includes bibliographical references and index. Identifiers: LCCN 2021039391 | ISBN 9781978828421 (Paperback : acid-free paper) | ISBN 9781978828438 (Hardback : acid-free paper) | ISBN 9781978828445 (ePub) | ISBN 9781978828452 (mobi) | ISBN 9781978828469 (PDF) Subjects: LCSH: Human rights. | Humanitarian intervention. | International relations. Classification: LCC JC571 .H86654 2022 | DDC 323—dc23/eng/20220206 LC record available at https://lccn.loc.gov/2021039391 A British Cataloging-­in-­Publication rec­ord for this book is available from the British Library. This collection copyright © 2022 by Rutgers, The State University of New Jersey Individual chapters copyright © 2022 in the names of their authors All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is “fair use” as defined by U.S. copyright law. References to internet websites (URLs) w ­ ere accurate at the time of writing. Neither the author nor Rutgers University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. The paper used in this publication meets the requirements of the American National Standard for Information Sciences—­Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992. www​.­r utgersuniversitypress​.­org Manufactured in the United States of Amer­i­ca

Contents Part I  Introduction 1

The Global H ­ uman Rights Regime: Risks and Contestations

3

S ALVADOR S AN T INO F. REGIL ME JR .

Part II Effectiveness of International ­Human Rights Institutions 2

Transparency, Accountability, and Legitimacy within the UN Universal Periodic Review

25

AL ICE S TORE Y AND M ARK EC CL E S TON-­T URNER

3 ­After Obama: The African Group at the UN

­Human Rights Council

40

EDUARD JORDA AN

Part III Thematic Blind Spots in International ­Human Rights 4

Consensus and ­Human Rights Politics: The Case of ASEAN Intergovernmental Commission on ­Human Rights

61

IRENE H A DIPR AY I T NO AND DINN A PR AP TO R AH AR JA

5

Skewed Vision: H ­ uman Rights in War through the Eyes in Peace

77

K A LOK Y IP

v

vi • Contents

6

Who Are the Victims of Crimes against Cultural Heritage?

92

OUM AR B A

7

Challenging the ­Legal Bound­aries of Genocide: The War on Drugs in the Philippines

106

DA HL IA SIM A NG AN

Part IV The United States and H ­ uman Rights Challenges 8 ­Human Rights at Risk in the Era of Trump and

American Decline

123

S ALVADOR S AN T INO F. REGIL ME JR .

9

The Tyranny of Exceptionalism: How the United States Rejects Universal H ­ uman Rights

140

JEF F RE Y DAV IS

Part V  Rethinking the F­ uture of H ­ uman Rights 10

Natu­ral Law and the F ­ uture of ­Human Rights

157

H ANS -­M AR T IEN T EN N APEL

11

Yesterday, ­Today, and Tomorrow: Thoughts on Global ­Human Rights in the Twenty-­First ­Century

173

EMIL IE M. H AF NER-­B UR TON

12

Risks and Emancipatory Rights

189

IRENE H ADIPR AY I T NO

Acknowl­edgments 197 Notes on Contributors 199 Index 203

­Human Rights at Risk

Part 1

Introduction

1

The Global H ­ uman Rights Regime Risks and Contestations SALVADOR SANTINO F. REGILME JR.

­ uman rights norms and the princi­ple of h H ­ uman dignity constitute the legitimation language of con­temporary global politics (Habermas 1998; Forst 2012; Regilme 2019a). In recent de­cades, vari­ous key instruments of global governance and public international law have per­sis­tently invoked the protection of ­human rights and dignity as a rallying cry for po­liti­cal mobilization. Notably, the 1945 United Nations (UN) Charter explic­itly called for the promotion of the dignity and rights of the h ­ uman person regardless of racial, sexual, linguistic, or religious identities. In 1948, the UN a­ dopted the Universal Declaration of H ­ uman Rights (UDHR), which started the global constitutionalization of princi­ples that underpin the protection of the dignity of the ­human person. In 1976, the International Covenant on Civil and Po­liti­cal Rights as well as the International Covenant on Economic and Social and Cultural Rights became legally effective ­after a substantial number of states ratified them. The UDHR and the two aforementioned international covenants jointly constitute the International Bill of Rights, which serves as the ­legal foundation of the con­temporary global ­human rights regime. Since then, many global governance institutions and domestic state institutions have re­oriented their policy priorities through the lens of ­human rights and dignity. The number of international treaties, conventions, and vari­ous 3

4 • Salvador Santino F. Regilme Jr.

instruments of public international law focusing on vari­ous dimensions of ­human rights has also increased in the past few de­cades (Hafner-­Burton 2013, 41–42). As Emilie Hafner-­Burton and Kiyoteru Tsutsui (2005, 1374) accurately noted, “The average state has ratified a steadily increasing percentage of available ­human rights treaties, creating a world space characterized by the rapid and nearly universal ac­cep­tance of international ­human rights law.” Consequently, national discourses and l­egal norms are often expected to respond to policy challenges by invoking the importance of h ­ uman rights, dignity, and other norms that prioritize the well-­being of individual h ­ uman persons. It has become increasingly clear, however, that the degree to which transnational ­human rights norms resonate to the most vulnerable individuals varies greatly within and between countries. In many socie­ties, far-­right politicians and other social movements have gained some traction in undermining h ­ uman rights princi­ples, if not totally instrumentalizing t­ hose norms for legitimizing policies that exploit marginalized groups. During the twenty-­fi fth anniversary of the World Conference on ­Human Rights in Vienna, UN High Commissioner for ­Human Rights Zeid Ra’ad Al Hussein (2018, 12) expressed his anx­i­eties pertaining to the deteriorating h ­ uman rights situation worldwide: “But t­ oday is not a time for soporific complacency. H ­ uman rights are sorely u­ nder pressure around the world—no longer a priority: a pariah. The legitimacy of h ­ uman rights princi­ ples is attacked. The practice of h ­ uman rights norms is in retreat.” Yet, the UN is not alone in its pessimistic diagnosis of the international ­human rights regime, as key transnational civil society organ­izations and think tanks have also observed a pattern of global deterioration of ­human rights. In ­Human Rights Watch’s 2020 World Report, Kenneth Roth (2020, 2) underscored the increasing po­liti­cal and economic influence of China amid its anti-­human-­ rights initiatives, while “elsewhere, autocratic populists gain office by demonizing minorities, and then retain power by attacking the checks and balances on their rule, such as in­de­pen­dent journalists, judges, and activists.” Th ­ ose autocratic populists include several other notable leaders from vari­ous regions, including Trump in the United States, Bolsonaro in Brazil, and Duterte in the Philippines. Hence, Roth (2020, 10) warned of a “perfect storm,” which is constituted by several transformative f­actors: China’s power­ful centralized state, “a coterie of like-­minded rulers, a void of leadership among countries that might have stood for ­human rights, and a disappointing collection of democracies willing to sell the rope that is strangling the system of rights that they purport to uphold.” In 2019, the U.S.-­based Freedom House (2019) recorded the thirteenth consecutive year of regression in civil and po­liti­cal rights, not only in the new electoral democracies in the Global South but also in the supposedly consolidated democracies in Global North, including the United States and many countries in Eu­rope. Although Freedom House still categorized it as generally “­free,” together with other consolidated democracies such as France and Germany, the United States registered a significant decline in po­liti­cal freedoms. The same study concluded

The Global ­Human Rights Regime • 5

that sixty-­eight countries recorded net declines in the areas of civil liberties and po­liti­cal freedoms in 2018, while only fifty registered net gains. In addition, the World Justice Proj­ect’s (2019) Rule of Law Index registered global declines in state compliance with its fundamental h ­ uman rights obligations and norms on restraints on its power. In liberal democracies in the Global North, sexist, racist, and discriminatory discourses in the mainstream public sphere became more popu­lar and blatant in mainstream media—­a development fueled by far-­right politics notably perpetrated by several key figures such as Geert Wilders and Thierry Boudet in the Netherlands, the Alternative für Deutschland in Germany, Marine Le Pen in France, and Viktor Orbán in Hungary, among many ­others. Similarly, in the Global South, far-­right politicians (e.g., Duterte in the Philippines and Bolsonaro in Brazil) and military juntas (e.g., in Thailand) per­sis­tently dehumanize individuals from minoritized groups and undermine peaceful po­liti­cal dissent. Although the international law on refugees is clear and widely ­adopted by many states, some of the biggest humanitarian disasters remain unresolved, including the crises in Myanmar, Syria, Yemen, and Venezuela, among many o­ thers, where millions of asylum seekers and refugees are attempting to escape but are faced with insurmountable walls constructed by destination countries’ governments. Considering t­ hose developments, are global ­human rights at risk? If so, how and ­under which conditions are they at risk? Within that broader analytic puzzle, we ask the following concrete questions that animate the vari­ous chapters of the volume: What are the key limitations and milestones of post–­Second World War international ­human rights norms—­particularly in terms of their conceptual basis, historical appreciation, practical applications, and normative under­ pinnings? In what ways could ­those limitations be remedied? In what ways could the milestones and strengths of the global ­human rights regime be reinforced? This multidisciplinary volume examines the ­causes and consequences of the vari­ous con­temporary challenges to international ­human rights and the protection of ­human dignity. Particularly, the volume is or­ga­nized based on four overarching themes that highlight the challenges and risks in international ­human rights: (1) international institutions and global governance, (2) thematic blind spots in h ­ uman rights governance, (3) the h ­ uman rights challenges of the United States as a key global and domestic actor amid con­temporary global shifts to authoritarianism and illiberal pop­u­lism, and (4) the ­future of the global ­human rights regime.

The State of Knowledge: ­Human Rights as Global Norms and Institutions Providing an analytically useful definition of h ­ uman rights norms serves as the first step in addressing w ­ hether such rights are at risk. In the international relations lit­er­a­ture, norms refer to “a collective expectation for the proper be­hav­ior

6 • Salvador Santino F. Regilme Jr.

of actors with a given identity” (Katzenstein 1996, 5). That widely used definition of norms constitutes several key premises. First, the durability of norms depends on the existence of a group of individuals who share a distinctive set of common interests and identity. Second, a group of individuals share a set of beliefs, ideas, and princi­ples that prescribe a par­tic­u­lar set of desired behavioral patterns. In other words, norms constitute two mutually reinforcing dimensions. The first dimension pertains to the materialist aspects: the group of individuals bounded by a sense of collective identity and a set of behavioral practices that facilitate changes in material endowments (e.g., wealth and public goods provision) or other material ramifications. The second dimension, meanwhile, considers the ideational ele­ments of norms, particularly its constitutive worldviews, principled beliefs, and causal beliefs (see also Goldstein and Keohane 1993, 5–8). More concretely, h ­ uman rights, as a worldview, seeks to uphold the inherent dignity of h ­ uman individuals by protecting them from abuse and disrespect. As a set of ideas, ­human rights as principled beliefs posit the features and conditions of ethically permissible be­hav­ior within a par­tic­u­lar normative order. As principled beliefs, ­human rights norms prescribe certain forms of be­hav­ior that re­spect the supposedly inherent dignity of the h ­ uman person and stipulate practices that ­either promote or denigrate ­human rights. For instance, slavery or forced servitude is widely considered as a deviation from h ­ uman rights norms and thereby suggests the prescriptive power of such norms. To some extent, ­human rights norms also function as a set of causal ideas, or precepts that suggest cause-­effect relationships, which are broadly shared by a po­liti­cal community. For instance, in many Northern Eu­ro­pean socie­ties with a comparatively strong welfare state tradition, bolstering public goods provision promotes the economic and material well-­being of its citizens. As facilitative of socioeconomic rights, welfare states aim to rectify severe material inequalities that, in the long term, could facilitate po­liti­cal disorder and social unrest. As such, ­human rights are invoked in order to legitimize strong public goods provision as a causal determinant for an orderly and sustainable society. Thus, ­human rights, as a set of norms, imply the collective understanding and ac­cep­tance of a par­tic­u­lar set of desired be­hav­ior and ethical princi­ples that constitute the moral fabric of a given po­liti­cal community. Yet, by merely conceptualizing ­human rights as norms, we ignore the vari­ous ways ­human rights discourses have been strategically used by many state and nonstate actors to advance concrete po­liti­cal objectives that have direct material consequences (Bob 2019; Regilme 2020a, 2020b, 2021). First, discourses pertaining to rights and dignity are often presented as universally accepted princi­ples, notwithstanding the contradictions between par­ tic­u­lar rights when invoked in par­tic­u­lar contentious policy debates. The notion of ­human rights—or perhaps its foundational idea that all ­human persons constitute inalienable dignity—­resonates very well across many po­liti­cal communities. Yet, as Anthony Langlois (2016, 25) argues, “the language of h ­ uman rights

The Global ­Human Rights Regime • 7

is fundamentally a normative or ethical language,” and appreciating the linguistic politics of rights is “essential to being able to navigate the complex po­liti­cal debates surrounding the desirability and normative content of ­human rights reform in the international system.” Thus, po­liti­cal actors tend to invoke h ­ uman rights as the legitimation basis of their respective and concrete policy agendas precisely ­because of such discourses’ strong moral resonance (Regilme 2020b, 3). Despite its purportedly universal resonance, ­there is a wide variation on how ­human rights are understood and realized in dif­fer­ent contexts. While other scholars suggest that strong physical integrity rights protection is still pos­si­ble even when the state’s capacities are extremely ­limited (Risse, Ropp, and Sikkink 2013), it remains unclear w ­ hether other types of rights, particularly social and economic rights, could flourish amid the increasing neoliberalization of economies and per­sis­tent commodification of ­human life. In the age of increasing material in­equality, extremely affluent individuals and their allied politicians and bureaucratic elites justify obscene levels of material wealth by arguing that the state’s primary goal is to protect the private property rights of its citizens (Piketty 2020; Regilme 2019b). In contrast, critics maintain that the social and economic rights and welfare of poor ­people prevail over private property rights (Regilme 2019b). Second, ­human rights discursive contestations also emerge when logics of domination and oppression are pitted against demands for emancipatory politics and protection of h ­ uman dignity. Particularly, some power­ful governments and elites in the Global North weaponize ­human rights discourses to justify widespread practices of exploitation and control. While it has been quite active in invoking ­human rights and democracy promotion as its core justifications for dominance in global governance, the U.S. government has systematically and visibly failed on the domestic front: widespread poverty especially among minoritized groups, gender in­equality, and the absence of state commitment to protect the rights and welfare of persons with disabilities, among many o­ thers. Indeed, post–­Cold War U.S. foreign policy has failed to intervene in many cases of genocidal events, and ­those policy failures w ­ ere ­shaped by the complex and dynamic relationships between po­liti­cal elites, public opinion, and po­liti­cal engagement at the domestic and international levels (Mayroz 2020). L ­ egal scholar Makau Mutua (2002, 19) criticizes this Eurocentric weaponization of ­human rights as paternalistic humanitarianism and considers the post–­Cold War international ­human rights movement as civilizing mission targeting primarily the Global South: It is one ­thing for Eu­ro­pe­ans and North Americans, whose states share a common philosophical and ­legal ancestry, to create a common po­liti­cal and cultural template to govern their socie­ties, particularly ­those outside Eu­rope. The merits of the Eu­ro­pean and American civilization of h ­ uman rights notwithstanding, all missionary work is suspect, and might easily seem a part

8 • Salvador Santino F. Regilme Jr.

of the colonial proj­ect. Once again, the allegedly superior Eu­ro­pe­ans and North Americans descend on supposedly backward natives in the Third World with the ­human rights mission to f­ ree them from the claws of despotic governments and benighted cultures.

This Eurocentric conception of ­human rights discourses has severe material consequences, namely, exploitative agendas that underpin t­ hose rights discourses substantially undermine the welfare of the most vulnerable persons within and beyond the Global South. As such, ­human rights discourses are fully embedded in the cobweb of competing po­liti­cal interests and hierarchies of governance at the domestic and transnational levels. As such, social theorist Lydia Morris (2013, 9) underscores the contradiction between the universalized conception of rights and uneven patterns of practices often justified through the discursive lens of ­human rights: “Civil and po­liti­cal rights are given greater prominence and stronger guarantees than social and economic rights; the UDHR, which is not legally binding, includes the right to seek and enjoy asylum but places no obligation on countries to offer asylum; the Eu­ro­pean Convention on ­Human Rights provides a raft of basic rights, but many may be subject to limitations, qualifications, and conditions . . . ​although the language of universal h ­ uman rights conveys a sense of ethical certainty, the practice of h ­ uman rights occupies less stable ground.” While the International Criminal Court (ICC), based in The Hague, primarily targets corrupt dictators and war criminals from the Global South, the principal architects of the U.S.-­led global war on terror—­especially U.S. president George W. Bush and his allies in the Global North—­evade accountability from the so-­called international justice and ­human rights and institutions. Similarly, the discourse on “responsibility to protect” (R2P) also illustrates how very power­ ful states from the Global North dictate how and u­ nder which conditions small and vulnerable countries could be subjected to vari­ous forms of so-­called humanitarian interventions. Inspired by the post–­Cold War global proliferation of ­human rights language, the R2P discourse posits that the international community assumes full responsibility when states systematically fail to comply with their h ­ uman rights obligations to their citizens, as exemplified by cases such as ethnic cleansing, genocide, and other crimes against humanity. Yet this invocation of the international community as the supposed arbiter of global justice conceals the tendency of power­ful states to aggravate further suffering in the Global South. Emphasizing how R2P promotes Western domination over Africa, Mahmood Mamdani (2010) observes that the ICC, ­under the guidance of the UN Security Council, constitutes a key global institution of the R2P norm “by allowing for the l­egal normalization of certain types of vio­lence (such as Western counterinsurgency efforts), while arbitrarily criminalizing the vio­lence of other states as ‘genocide.’ ” The lack of demo­cratic mechanisms that ­will implement the international community’s “duty of care” in case of a h ­ uman rights

The Global ­Human Rights Regime • 9

crisis facilitates power­ful states’ wide discretion over when and how R2P interventions are conducted (Cunliffe 2010). Thus, Stephen Hopgood (2013, 25) accurately describes this unfortunate scenario: “The ICC and R2P are the last stand of a Eu­ro­pean imperial vision of one world united around impartial, neutral, and apo­liti­cal norms.” When ­people from postcolonial states have attained some form of po­liti­cal autonomy to govern their own domestic affairs, former colonial Eu­ro­pean states have resorted to the power of ­human rights as a moral and disciplinary language in order to perpetrate vari­ous forms of systemic exploitation of minoritized groups within the Global North and more so in the Global South. As Lora Viola (2020, 33) rightly argues, despite the perception of the increasing expansion and inclusiveness of global governance institutions, ­those institutions, however, “manage diversity and pluralism by narrowing the range of legitimate actors rather than by embracing diversity and po­liti­cal pluralism.” Notably, global governance institutions—­including ­those that profess humanitarian or human-­rights-­oriented missions—­reflect the pathological inequalities of the international system: identity-­based hierarchies and the highly unequal distribution of material goods. Third, when faced by a security crisis, governments justify the abrogation of their ­human rights obligations to their constituents in the name of protecting state security or the global order. In this scenario, “the discourse of ­human rights is full of compromise,” whereby “security is posited against liberty, as if the two are irreconcilable” (O’Byrne 2016, 24). A ­ fter the 9/11 terror attacks in the United States in 2001, the U.S. government ­under the Bush administration widely expanded the state’s coercive apparatus in ways that intensified domestic and foreign surveillance operations, which consequently encroached on the civil liberties and privacy rights of individuals within and beyond the United States (Priest and Arkin 2011). In addition, the U.S.-­led global war on terror also reinforced many partner states’ counterterror and militaristic agendas, which facilitated many cases of extrajudicial killings, torture, and enforced disappearances worldwide (Regilme 2018a, 2018b, 2021; de Groot and Regilme 2020). During the post-9/11 era, many states justified intensified state repression by arguing that ­human rights and civil liberties could be sacrificed so as to secure the state from supposed existential threats. In this way, h ­ uman rights emerged as just one of the state’s competing legitimation metadiscourses, such as sovereignty, state security, peace, and economic development, among ­others (Regilme 2020b). ­Those contestations over h ­ uman rights princi­ples and practices raise the suspicion of ­whether the international h ­ uman rights regime is at risk. What is risk? In common parlance, risk refers to a situation where harm, danger, or loss exist. In his highly influential book, German sociologist Ulrich Beck (2005) argued that our con­temporary society has transitioned from an “industrial society” to a “risk society.” The risks to the lives of p­ eople and societal life have increased amid increasing global economic and po­liti­cal interdependence. Consequently, state, nonstate actors, and intergovernmental organ­izations strug­gle in managing

10 • Salvador Santino F. Regilme Jr.

the risks or dangers emerging from dynamic cross-­border interactions within complex webs of global governance (Zürn 2018, 3). In the case of the global ­human rights regime, the notion of risk broadly refers to vari­ous foreseen and unforeseen threats and dangers that not only could systematically harm the legitimacy and effectiveness of key h ­ uman rights institutions (states, intergovernmental organ­izations, and h ­ uman rights civil society groups) but also could substantially undermine the dignity and vari­ous rights claims of many individuals in a par­ tic­u­lar po­liti­cal community. More concretely, the international h ­ uman rights regime is at risk when two conditions can be observed. First, it is at risk when ­there is extensive noncompliance at vari­ous levels of application (individual, local, national, regional, and transnational), as scholars of international norms call norm decay (Panke and Petersohn 2016; Glennon 2005; Deitelhoff and Zimmermann 2018, 53). For example, widespread state-­sanctioned killings of civilians persist in the Global South and in supposedly consolidated democracies such as the United States; Eu­ro­pean states, meanwhile, have systematically failed to provide safe refuge and humanitarian assistance to millions of vulnerable and endangered individuals from conflict zones. In 2019, the Eu­ro­pean Union and its member states faced a lawsuit at the ICC for the adoption of a “deterrence-­based migration policy ­after 2014” (Bowcott 2019, 2). That policy aimed “to sacrifice the lives of mi­grants in distress at sea, with the sole objective of dissuading ­others in similar situation from seeking safe haven in Eu­rope” (Bowcott 2019, 2). Consequently, such policy actions have endangered the already precarious lives of refugees. Second, the international h ­ uman rights regime is at risk when their justificatory and legitimating foundations are increasingly and widely being put into serious scrutiny or contestation. Specifically, illiberal and autocratic discourses in mainstream politics have delegitimized progressive social movements, unarmed po­liti­cal opposition, and other h ­ uman rights activists (Roth 2017). For instance, Philippine president Rodrigo Duterte confidently denounced h ­ uman rights princi­ples that are constitutionally guaranteed in his country: “Forget the laws on h ­ uman rights. . . . ​You drug pushers, hold-up men and do-­nothings, you better go out. ­Because I’d kill you. I’ll dump all of you into Manila Bay, and fatten all the fish t­ here” (Duterte 2008, 8, quoted in Coonan 2016). Amid the demo­ cratic regression in Eastern Eu­rope, Hungarian prime minister Viktor Orbán’s spokesperson dismissed the need for helping refugees: “We are against the idea that migration is good or that it is a ­human right” (Walker 2018, 10). In the world’s most populous country, Chinese president Xi Jinping’s administration has bolstered the violent repression of ethnic minorities in the Xinjiang region, where the ­human rights claims of vulnerable groups have been delegitimized and dismissed to give way to Beijing’s claims for state security (Ramzy and Buckley 2019). When anti-­human-­rights discourses are matched with patterns of abusive state practices, the global ­human rights regime is more prone to further deterioration.

The Global H ­ uman Rights Regime • 11

As illiberal and autocratic politicians continue to demonize h ­ uman rights activists and po­liti­cal dissidents, societal polarization emerges, thereby making it difficult to conduct policy debates that are based on verifiable evidence, sustained argumentation, and guaranteed protection for peaceful po­liti­cal dissent. McCoy and Somer (2019, 234) warn us of this emerging “pernicious polarization (when a society is split into mutually distrustful ‘Us vs. Them’ camps),” whereby po­liti­cal actors deploy polarizing tactics “such as mobilizing voters with divisive, demonizing discourse and exploiting existing grievances, and opposing po­liti­cal elites then reciprocate with similarly polarizing tactics or fail to develop effective nonpolarizing responses.” Perhaps the clearest example of this remarkable polarization in con­temporary constitutional democracies pertains to the results of the 2020 U.S. presidential elections. Although Joe Biden emerged as the forty-­sixth U.S. president, receiving almost eighty-­one million votes, Donald Trump still garnered seventy-­four million votes, thereby implying a substantial number of American voters willing to forgo h ­ uman rights in exchange for supporting Trump’s antidemo­cratic agenda. Electoral support for Trump is quite remarkable especially if we consider his glaring and per­sis­tent policy failures as well as his blatant disregard for the loss of numerous lives during the COVID-19 pandemic. No won­der discourses that emphasize states’ ­human rights obligations are now u­ nder intense contestations amid the increasingly polarized public sphere. For instance, increasing polarization has facilitated competing definitions of citizenship rights and raised serious questions concerning the obligations of states, particularly on the rights of immigrants and refugees. Such polarization undermined the rights of immigrants and minoritized groups in the United States and Hungary, and it has also delegitimized state tolerance for diversities in ethnic, religious, and social identities, as demonstrated by present-­day South Africa, Zimbabwe, Turkey, and Bangladesh (McCoy and Somer 2019, 234). In the recent past, h ­ uman rights have constituted the legitimating basis for vari­ous foreign policy actions of power­ful liberal demo­cratic states, as shown by the example of U.S. foreign policy actions in the Global South (Regilme 2021). Contrary to the popu­lar rendering of American power as the promoter of world peace, Christine Hong (2020, 19) compellingly argued that the exercise of that power “gave rise to securitized conceptions of humanity,” especially when one considers the U.S. military empire’s “racial soldiering, war­time mass detention, racial counterintelligence, collaboration, subimperialism, h ­ uman radiation experiments, and military mascotry.” Even former U.S. president Barack Obama unashamedly invoked h ­ uman rights and international law to justify his unpre­ ce­dented reliance on drone warfare that systematically killed civilians in territories beyond the formal territorial sovereignty of the United States (de Groot and Regilme 2020). In this highly militarized exercise of American power abroad, ­human lives are subjected to varying levels of risk and death. Specifically, Yagil Levy (2019, 7) calls this system the “death hierarchy,” which refers to “an ordered

12 • Salvador Santino F. Regilme Jr.

scale of value” that states “apply to the lives of their soldiers relative to the lives of their civilians and e­ nemy combatants.” Who is legitimated to use force and vio­lence against o­ thers? Who are ­these individuals “worth” sacrificing? This par­ tic­u­lar exercise of U.S. militarism that is often juxtaposed with ­human rights and demo­cratic discourses reflects the binary opposition of what Levy (2019, 7) conceptualized as “legitimacy of using force” and the “legitimacy of sacrificing.” While power­ful actors can perpetrate their dehumanizing practices as they claim their supposedly distinctive “legitimacy of using force,” such actors also deploy their military firepower that kills civilians through a perversely conceptualized “legitimacy of sacrificing.” Makau Mutua (2002, 19) characterizes the inherent contradictions of using h ­ uman rights language in order to justify exploitative practices of power­ful states upon the p­ eople of smaller countries in the Global South: “Although the h ­ uman rights movement arose in Eu­rope, with the express purpose of containing Eu­ro­pean savagery, it is t­ oday a civilizing crusade aimed primarily at the Third World.” Former U.S. president Donald Trump has consistently dismissed ­human rights as the legitimating basis of American power in global governance, despite his pre­de­ces­sors’ reliance on ­those rights-­based discourses (Regilme 2020a). Former UN official and influential ­human rights scholar Philip Alston (2017, 1–2) characterizes this overall decline in support for ­human rights, particularly in ways that seem to be unpre­ce­dented in recent years: “The world as we in the ­human rights movement have known it in recent years is no longer. The populist agenda that has made such dramatic inroads recently is often avowedly nationalistic, xenophobic, misogynistic, and explic­itly antagonistic to all or much of the ­human rights agenda. As a result, the challenges the ­human rights movement now ­faces are fundamentally dif­fer­ent from much of what has gone before.” Yet, the rise of illiberal pop­u­lism and other ­human rights challenges have also galvanized counterprotests in support of h ­ uman rights (Hopgood, Snyder, and Vinjamuri 2017, 3). The emergence of a demo­cratic socialist agenda from the margins to mainstream politics in the United States, as demonstrated by the rise of Bernie Sanders along with Alexandria Ocasio-­Cortez, has also seriously derailed Trump’s illiberal pop­u­lism. In fact, the electoral victory of the Demo­crats in the congressional 2018 midterm elections “put new checks on Trump’s power and it seems to have reversed the trajectory of an increasingly unconstrained executive” (Lührmann et al. 2018, 16). More recently, the death of George Floyd, who was murdered by Minneapolis police officers on May 25, 2020, has sparked global protests against all forms of racism, police abuse, and ­human rights violations even amid the COVID-19 pandemic. According to the Va­ri­e­ties of Democracy (V-­DEM) report that quantitatively mea­sured global patterns of democ­ratization from the 1900s u­ ntil the first two de­cades of the twenty-­first c­ entury, the “third wave of autocratization” has recently emerged due to many democracies that faced setbacks, and the “global share of demo­cratic countries remains close to its all-­time high” (Lührmann and Lindberg 2019, 1095). Thus, ­these existing

The Global H ­ uman Rights Regime • 13

demo­cratic spaces should provide opportunities for activists and progressive social movements to continue advocating for the rights and welfare of the most vulnerable individuals. Based on the V-­DEM report, twenty-­one nations have shifted to a demo­cratic system in the last de­cade, while emerging demo­cratic social movements have gained traction recently in Sudan, the Balkans, and Algeria—­thereby demonstrating the existing appeal of democracy and h ­ uman rights (Lührmann et al. 2019, 16). In broad strokes, t­ hose aforementioned risks suggest a grim diagnosis of the current state of the global ­human rights regime. That pessimistic view is gaining traction in many quarters of the globe (Regilme 2020c, 1472–1474). Notably, many states have systematically failed to protect the lives of millions of individuals amid the COVID-19 pandemic. Particularly, many states promoted the interests of big corporations through hefty bailouts but dismissed the importance of guaranteeing universal and high-­quality health care and decent living standards to their own citizens. As such, Samuel Moyn (2018a, 2018b) contends that the international ­human rights regime fell short of its initially radical emancipatory spirit. Specifically, the global h ­ uman rights regime favored a minimalist demand for material sufficiency rather than a more ambitious demand for material equality. While h ­ uman rights became a popu­lar strategy for substantiating grievances, “the increasing appropriation of rights-­talk to frame any and all grievances is undermining attempts to successfully address systemic social prob­lems,” and therefore structural prob­lems “such as poverty should be framed as social justice rather than h ­ uman rights” (Clement 2018, 155). Likewise, Hopgood (2013) underscores the deterioration of international h ­ uman rights b­ ecause Western states use rights discourses for their exploitative material interests and violent interventions in the Global South. ­Legal scholar Eric Posner (2014), meanwhile, argues that international ­human rights law illustrates a sort of “rule naivete,” which refers to the stance that the good in ­every country can be equated to a set of laws, which in turn can then be impartially implemented. Yet Posner (2017, 7) maintains that this rule naivete “is in part responsible for the proliferation of ­human rights, which has made meaningful enforcement impossible.” That being so, ­human rights abuses persist worldwide, notwithstanding the ratification of so many international treaties, which usually contain unclear and sometimes contradictory princi­ples. Clifford Bob (2019), however, maintains a more balanced view of rights, which can be used as discursive tools and a rallying tactic for both emancipatory aims and oppressive goals. In contrast, some scholars call for more appreciation of the achievements of the international ­human rights regime. Using quantitative models that mea­sure po­liti­cal repression, Fariss (2014, 297) shows that “re­spect for h ­ uman rights has improved over time and that the relationship between h ­ uman rights re­spect and ratification of the UN Convention Against Torture is positive” (see also Fariss 2019; Fariss and Dancy 2017. In her study of international nongovernmental organ­izations, Murdie (2014) demonstrates their generally positive impacts on

14 • Salvador Santino F. Regilme Jr.

­ uman security. Moreover, ideational changes in the law and evidentiary stanh dards of adjudication contributed to the overall success of ­human rights ­trials and judicial prosecutions in Latin Amer­i­ca (Gonzalez-­Ocantos 2016). Kathryn Sikkink (2017, 11–12) highlights the diversity of actors (from both the Global North and the Global South) and emphasizes the inherently progressive spirit and impact of h ­ uman rights over time: “The h ­ uman rights situation in the world is characterized by some areas of retrogression and worsening, such as the situations in Syria, Egypt, Mexico, and the United States, but also by other areas of increasing awareness and improvements, such as current developments in gender equality, the rights of sexual minorities, and the rights of ­people with disabilities. Although h ­ uman rights change takes a long time and its pro­gress ebbs and flows, we do not see ­wholesale abandonment of ­human rights ideas or loss of confidence in the institutions designed to advance and protect ­these rights.” Alternatively, our volume offers a much more complex and nuanced picture of the current state of the global h ­ uman rights regime. We do so by exploring the challenges faced by global h ­ uman rights institutions as well as the United States, which remains the most power­ful state actor in global ­human rights governance. This volume investigates some understudied yet grave challenges in the protection of ­human dignity, including the genocidal features of the “war on drugs” in the Philippines, the contradictions in h ­ uman rights law in the context of war, and crimes against cultural heritage. This volume evaluates the ­causes and consequences of the continued delegitimation of h ­ uman rights at the international level, specifically by focusing on their ideological shortcomings and failures in their implementation. Th ­ ose analytic objectives, however, require a diversity of perspectives—­particularly in terms of disciplinary standpoint, theoretical approach, and thematic focus—­often not found in a single anthology in h ­ uman rights research. Therefore, we assembled an analytically eclectic roster of scholars from the Global South and Global North to reflect upon the risks and challenges of con­temporary h ­ uman rights.

Orga­nizational Logic of the Volume The chapters in this volume analyze ­whether international ­human rights are at risk, pre­sent some understudied h ­ uman rights challenges in global governance, and reflect on vari­ous ways to strengthen global cooperation on ­human rights protection. In realizing t­ hose objectives, the volume is based on the following orga­nizational logic. The first part provides a broad analytic overview of the strengths and weaknesses of the con­temporary global h ­ uman rights regime, introduces the rationale of the volume, and discusses the key arguments of the vari­ous chapters. The second part focuses on the role of international ­human rights institutions, particularly on the key challenges of ­human rights protection faced by UN ­Human Rights Council and the normative status as well as the interpretative value of international ­human rights treaty bodies. The third part

The Global H ­ uman Rights Regime • 15

highlights some of thematic blind spots in the current mainstream scholarship and public discussions on h ­ uman rights, with the emphasis on the following issues: crimes against cultural heritage; prob­lems in the peacetime ­human rights litigation of violations incurred during war­time; the war on drugs as a genocidal pro­cess; and the regional politics of h ­ uman rights protection in Global South, particularly in case studies of Southeast Asian countries. The fourth part investigates the ­causes and consequences of illiberal populist and authoritarian discourses and social movements, both at the global level as well as within the United States. Focusing on the United States, the fourth part analyzes the risks to international ­human rights posed by the Trump administration. The book concludes by reflecting upon the potential approaches and mechanisms through which the challenges and risks to international ­human rights could be legitimately and effectively addressed. Focusing on the effectiveness of international h ­ uman rights institutions, the first part of the volume constitutes two chapters that address not only the accomplishment of t­hese institutions at the global and regional levels but also the challenges they face pertaining to their orga­nizational structures and ­legal frameworks. The authors examine the consequences of ­these po­liti­cal and ­legal landscapes for the ways ­these institutions interact with their members and ­others. In chapter 2, ­legal scholars Alice Storey and Mark Eccleston-­Turner investigate the manner in which transparency is approached by one of the key ­human rights agencies in the UN system: the Office of the High Commissioner for ­Human Rights (OHCHR) in the UN H ­ uman Rights Council’s Universal Periodic Review (UPR). Storey and Eccleston-­Turner show the lack of transparency in the formulation of the UPRs using two case studies: (1) the review of the United States’ UPRs with a focus on the abolition of death penalty, and (2) the function of UPRs in highlighting the prob­lem of access to HIV medi­cation in the leading HIV-­prevalent states. The contributors advocate for greater transparency in the formulation of decisions in the OHCHR as a way of reinforcing the legitimacy of international h ­ uman rights institutions amid rising illiberal pop­u­ lism. Written by po­liti­cal scientist Eduard Jordaan, the third chapter highlights the role of African states’ voting be­hav­ior in the UN ­Human Rights Council (UNHRC). With their reputation for hindering key h ­ uman rights initiatives in vari­ous UN forums especially during the first few years of the UNHRC, African states shifted gears in late 2010 by adopting a more liberal and pro-­human-­ rights voting stance. Jordaan provides empirical evidence that the Obama administration’s human-­rights-­oriented foreign policy agenda might have contributed to the shift in African states’ voting be­hav­ior in the UNHRC. This chapter highlights the decline in African states’ support for ­human rights in the UNHRC but cautions that the decline does not constitute a crisis at all in this influential ­human rights body. Both chapters clearly illustrate some of the notable institutional defects and increased contestations of h ­ uman rights norms in key ­human rights instruments within the UN. Despite ­those challenges, both

16 • Salvador Santino F. Regilme Jr.

chapters advocate for some strategies for increasing the legitimacy and effectiveness of UN ­human rights institutions and discard the premise that ­human rights are in crisis. The second part, meanwhile, analyzes some of the key thematic blind spots in international ­human rights. The chapters therein investigate issues that are not commonly addressed as ­human rights concerns but affect the ways in which ­human rights and dignity are protected. To discuss the thematic blind spots in international h ­ uman rights, this section reflects upon vari­ous insights gained from the field as well as contextual puzzles that arise from the application of ­human rights law as contested global discourses. Written by area studies scholar Irene Hadiprayitno and former h ­ uman rights diplomat Dinna Prapto Raharja, chapter 4 highlights the contestations and consensus-­building initiatives concerning h ­ uman rights in Southeast Asia. The chapter problematizes how the Association of Southeast Asian Nations’ Intergovernmental Commission on ­Human Rights (AICHR) builds consensus and institutionalizes h ­ uman rights norms within the region. The authors emphasize that AICHR is a unique international h ­ uman rights instrument that provides a transnational public sphere for actors from state and civil society spheres to discuss and to build an evolving perspective on ­human rights princi­ples that reflect the po­liti­cal realities among member states. Thus, Hadiprayitno and Prapto Raharja argue that the international ­human rights community suffers from a blind spot, particularly when it solely focuses on the inability of the AICHR to implement punitive mea­sures against h ­ uman rights violators or to ensure one-­to-­one correspondence of regional politics of ­human rights with global ­human rights discourses. The authors highlight the differentiated po­liti­cal trajectories of vari­ous regions of the world and advocate instead for strengthening AICHR’s core capacities in facilitating cross-­ border cooperation. Indeed, Hadiprayitno and Prapto Raharja emphasize that regional actors have successfully built a consensus for further institutionalization of h ­ uman rights. Second, the chapter by l­egal scholar and practitioner Ka Lok Yip critiques international h ­ uman rights law as applied in war but adjudicated and deliberated in peace. The author highlights the ambiguity and conflict in ­human rights interpretation, particularly between t­ hose who are situated in war-­torn socie­ties and in “peaceful” countries in the Global North. Furthermore, the chapter underscores how international litigation on “­human rights in war” illustrates the Eurocentric origins of international law and the connivance of current ­legal practices as they pre­sent Western hegemony as universality. Written by po­liti­cal scientist Oumar Ba, the next chapter examines the personification of victims of crimes against cultural heritage. Ba’s chapter studies the proliferation of new actors and transnational ­legal pro­cesses that aim to protect cultural heritage in conflict zones. Focusing on the case of the destruction of cultural and religious heritage sites in Timbuktu, Mali, in 2012, Ba studies the role of the ICC, which conducted the first ever l­ egal case before an international court where an individual (Ahmad Al Mahdi) was solely indicted for war crimes of

The Global H ­ uman Rights Regime • 17

cultural heritage destruction. The Al Mahdi case reveals three key victims: Timbuktu residents, the Malian state, and the United Nations Educational, Scientific and Cultural Organ­ization (UNESCO), as the institutional representative of the international community. Ba maintains that the destruction of cultural heritage does not necessarily warrant ICC intervention but emphasizes that destruction of cultural heritage is indeed a h ­ uman rights violation. Written by peace studies scholar Dahlia Simangan, the final chapter in this section pertains to the “war on drugs” as a form of genocide. Using the case study of the administration of Philippines president Rodrigo Duterte, Simangan highlights the limitations of international l­egal instruments in classifying large-­scale h ­ uman rights violations as genocidal events. Simangan shows that the Philippine war on drugs (2016–­pre­sent) fulfills the vari­ous stages of genocide based on Gregory Stanton’s theory and therefore constitutes a genocidal event. The third part of the book focuses on the United States as the most power­ful state actor in the con­temporary international system, particularly by investigating the challenges to its legitimacy and effectiveness in ­human rights protection at the domestic and international levels. Focusing on the crisis of international ­human rights as facilitated by former president Trump and the declining U.S. power in the international system, I reflect on the uniqueness of the Trump presidency and the emerging authoritarian politics elsewhere: while neoliberalism’s detrimental consequences to h ­ uman rights within and beyond the United States constitute a relatively long history, Trump and his allies have abandoned the legitimation tactics that their pre­de­ces­sors had so willingly used. I maintain that the discourses on American decline in world politics should focus not only on the emergence of rising powers such as China but also on the increasingly tarnished legitimacy of the United States due to Trump’s po­liti­cal discourses and policies. Analyzing the domestic judicial politics of ­human rights in the United States, po­liti­cal scientist Jeffrey Davis differentiates U.S. constitutional order from the regional and domestic systems of Eu­ro­pean democracies. Davis shows how the U.S. judicial system has exemplified the rejection of the universality of ­human rights norms and the prioritization of national sovereignty, whereas the Eu­ro­pean ­human rights system illustrates a more universalistic conception of rights that transcends national constitutional o­ rders. Consisting of two chapters, the final part evaluates the general strengths and weaknesses of the con­temporary h ­ uman rights regime and theorizes the f­ uture of ­human rights in the constantly changing po­liti­cal, economic, cultural, and social environment. The two authors in this section offer alternative views concerning the promotion and protection of ­human rights at the level of discourse, norms, and practices. Written by constitutional law scholar Hans-­Martien ten Napel, chapter 10 highlights the apparent deviation of Western constitutional practices from natu­ral law and argues that this deviation poses a serious risk to the ­future of international ­human rights. In contrast, po­liti­cal scientist Emilie M. Hafner-­Burton acknowledges the serious challenges of the con­temporary

18 • Salvador Santino F. Regilme Jr.

international h ­ uman rights movement, including the relative decline of the West, populist nationalism, and the rise of illiberal powers such as China. Recognizing the role of state interests in promoting compliance with international ­human rights norms, Hafner-­Burton advocates for more effective strategies of converting ­human rights advocacies into concrete material interests. The concluding chapter by Irene Hadiprayitno pre­sents some of the theoretical and po­liti­cal implications of the core arguments presented in this volume. This book contributes to the current h ­ uman rights scholarship and po­liti­cal discussions in several ways. First, it offers new perspectives that envision the ­f uture of transnational h ­ uman rights norms and ­human dignity. Second, it explores some of the most urgent yet understudied prob­lems in international ­human rights protection, including its representative global and national institutions as well as its concrete manifestations at the local level, with a focus on the challenges faced by the United States as a global and domestic po­liti­cal actor. Third, it brings together social scientists, l­ egal scholars, and humanities scholars to comprehensively examine the ­causes and consequences of the challenges faced by international ­human rights. This multidisciplinary collaboration is necessary especially b­ ecause ­there are multiple social, cultural, and historical variables that shape the con­temporary risks and challenges faced by the global h ­ uman rights regime, and such challenges are often analyzed by specific disciplinary approaches rather than a more holistic and multidimensional outlook.

References Alston, P. 2017. “The Populist Challenge to H ­ uman Rights.” Journal of H ­ uman Rights Practice 9 (1): 1–15. Beck, U. 2005. “Risk Society.” In Encyclopedia of Social Theory, edited by G. Ritzer, 648–659. Thousand Oaks, CA: SAGE. Bob, C. 2019. Rights as Weapons: Instruments of Conflict, Tools of Power. Prince­ton, NJ: Prince­ton University Press. Bowcott, O. 2019. “ICC Submission Calls for Prosecution of EU over Mi­grant Deaths.” Guardian, June 3. https://­w ww​.­theguardian​.­com​/­law​/­2019​/­jun​/­03​/­icc​-­submission​ -­calls​-­for​-­prosecution​-­of​-­eu​-­over​-­migrant​-­deaths​?­fbclid​=­IwAR0pdLEwZvOZJGO​ gbFXbXbUHte​-­n3ZJv5CEWsfIOTDvl5G4OjO51GyKccwU. Clément, D. 2018. “­Human Rights or Social Justice? The Prob­lem of Rights Inflation.” International Journal of H ­ uman Rights 22 (2): 155–169. Coonan, C. 2016. “10 Quotes: Philippines President Rodrigo Duterte in His Own Words.” Irish Times, September 30. https://­w ww​.­irishtimes​.­com​/­news​/­world​/­asia​ -­pacific​/­10​-­quotes​-­philippines​-­president​-­rodrigo​-­duterte​-­in​-­his​-­own​-­words​-­1​ .­2812189. Cunliffe, P. 2010. “Dangerous Duties: Power, Paternalism and the ‘Responsibility to Protect.’ ” Review of International Studies 36 (S1): 79–96. de Groot, T., & Regilme, S. 2020. “Drone Warfare and the Obama Administration’s Path-­Dependent Strug­g les on ­Human Rights and Counterterrorism.” Interdisciplinary Po­liti­cal Studies, 6 (1): 167–202.

The Global H ­ uman Rights Regime • 19

Deitelhoff, N., and L. Zimmermann. 2018. “­Things We Lost in the Fire: How Dif­fer­ent Types of Contestation Affect the Robustness of International Norms.” International Studies Review 22:51–76. Fariss, C. 2014. “Re­spect for H ­ uman Rights Has Improved over Time: Modeling the Changing Standard of Accountability.” American Po­liti­cal Science Review 108 (2): 297–318. —­—­—. 2019. “Yes, H ­ uman Rights Practices Are Improving over Time.” American Po­liti­cal Science Review 113 (3): 868–881. Fariss, C., and G. Dancy. 2017. “Mea­sur­ing the Impact of H ­ uman Rights: Conceptual and Methodological Debates.” Annual Review of Law and Social Science 13 (1): 273–294. Forst, R. 2012. “The Justification of H ­ uman Rights and the Basic Right to Justification: A Reflexive Approach.” In Philosophical Dimensions of H ­ uman Rights, edited by C. Corradetti. Dordrecht: Springer. Freedom House. 2019. “Democracy in Retreat.” February 24. https://­freedomhouse​.­org​ /­report​/­freedom​-­world​/­freedom​-­world​-­2019. Glennon, M. 2005. “How International Rules Die.” Georgetown Law Journal 93 (3): 939–991. Goldstein, J., and R. Keohane, eds. 1993. Ideas & Foreign Policy: Beliefs, Institutions and, Politics. Ithaca, NY: Cornell University Press. González-­Ocantos, E. 2016. Shifting L ­ egal Visions: Judicial Change and H ­ uman Rights ­Trials in Latin Amer­i­ca. Cambridge: Cambridge University Press. Habermas, J. 1998. “Remarks on Legitimation through H ­ uman Rights.” Philosophy & Social Criticism 24 (2–3): 157–171. Hafner-­Burton, E. 2013. Making H ­ uman Rights a Real­ity. Prince­ton, NJ: Prince­ton University Press. Hafner-­Burton, E., and K. Tsutsui. 2005. “­Human Rights in a Globalizing World: The Paradox of Empty Promises.” American Journal of Sociology 110 (5): 1373–1411. Hong, C. 2020. A Violent Peace: Race, U.S. Militarism, and Cultures of Democ­ratization in Cold War Asia and the Pacific. Palo Alto, CA: Stanford University Press. Hopgood, S. 2013. The Endtimes of ­Human Rights. Ithaca, NY: Cornell University Press. Hopgood, S., J. Snyder, and L. Vinjamuri. 2017. “Introduction: Human Rights Past, Present and Future.” In Human Rights Futures, edited by Stephen Hopgood, Jack Snyder, and Leslie Vinjamuri, 1–23. New York: Cambridge University Press. Katzenstein, Peter J., ed. 1996. The Culture of National Security: Norms and Identity in World Politics. New York: Columbia University Press. Langlois, A. 2016. “Normative and Theoretical Foundations of ­Human Rights.” In ­Human Rights: Politics and Practice, edited by M. Goodhart, 11–27. Oxford: Oxford University Press. Levy, Y. 2019. Whose Life Is Worth More? Hierarchies of Risk and Death in Con­temporary Wars. Palo Alto, CA: Stanford University Press. Lührmann, A., S. Grahn, R. Morgan, S. Pillai, and S. Lindberg. 2019. “State of the World 2018: Democracy Facing Global Challenges.” Democ­ratization 6 (1): 1–21. Lührmann, A., and S. Lindberg. 2019. “A Third Wave of Autocratization Is ­Here: What Is New about It?” Democ­ratization 26 (7): 1095–1113. Mamdani, M. 2010. “Responsibility to Protect or Right to Punish?” Journal of Intervention and Statebuilding 4 (1): 53–67. Mayroz, E. 2020. Reluctant Interveners: Amer­i­ca’s Failed Responses to Genocide from Bosnia to Darfur. New Brunswick, NJ: Rutgers University Press.

20 • Salvador Santino F. Regilme Jr.

McCoy, J., and M. Somer. 2019. “­Toward a Theory of Pernicious Polarization and How It Harms Democracies: Comparative Evidence and Pos­si­ble Remedies.” Annals of the American Acad­emy of Po­liti­cal and Social Science 681 (1): 234–271. Morris, L. 2013. ­Human Rights and Social Theory. London: Palgrave. Moyn, S. 2018a. “A Powerless Companion: ­Human Rights in the Age of Neoliberalism.” Law and Con­temporary Prob­lems 77:147–169. —­—­—. 2018b. Not Enough: ­Human Rights in an Unequal World. Cambridge, MA: Harvard University Press. Murdie, A. 2014. Help or Harm: The H ­ uman Security Effects of International NGOs. Palo Alto, CA: Stanford University Press. Mutua, M. 2002. ­Human Rights: A Cultural and Po­liti­cal Critique. Philadelphia: University of Pennsylvania Press. O’Byrne, D. 2016. ­Human Rights in a Globalizing World. London: Palgrave. Panke, D., and U. Petersohn. 2016. “Norm Challenges and Norm Death: The Inexplicable?” Cooperation and Conflict 51 (1): 3–19. Piketty, T. 2020. Capital and Ideology. Cambridge, MA: Harvard University Press. Posner, E. 2014. The Twilight of ­Human Rights Law. New York: Oxford University Press. Priest, D., and W. M. Arkin. 2011. Top Secret Amer­i­ca: The Rise of the New American Security State. New York: L ­ ittle, Brown. Ramzy, A., and C. Buckley. 2019. “ ‘Absolutely No Mercy’: Leaked Files Expose How China Or­ga­nized Mass Detentions of Muslims.” New York Times, November 16. https://­w ww​.­nytimes​.­com​/­interactive​/­2019​/­11​/­16​/­world​/­asia​/­china​-­xinjiang​ -­documents​.­html. Regilme, S. 2018a. “Does US Foreign Aid Undermine H ­ uman Rights? The ‘Thaksinification’ of the War on Terror Discourses and the H ­ uman Rights Crisis in Thailand, 2001 to 2006.” ­Human Rights Review 19 (1): 73–95. —­—­—. 2018b. “A H ­ uman Rights Tragedy: Strategic Localization of US Foreign Policy in Colombia.” International Relations 32 (3): 343–365. —­—­—. 2019a. “The Global Politics of H ­ uman Rights: From ­Human Rights to H ­ uman Dignity?” International Po­liti­cal Science Review 40 (2): 279–290. —­—­—. 2019b. “Constitutional Order in Oligarchic Democracies: Neoliberal Rights versus Socio-­economic Rights.” Law, Culture and the Humanities. https://­d x​.­doi​.­org​ /­10​.­1177​/­1743872119854142. —­—­—. 2020a. “The Instrumentalization of H ­ uman Rights in World Politics.” International Studies Review 22 (1): 176–177. —­—­—. 2020b. “Visions of Peace Amidst a ­Human Rights Crisis: War on Drugs in Colombia and the Philippines.” Journal of Global Security Studies. https://­doi​.­org​/­10​ .­1093​/­jogss​/­ogaa022. —­—­—. 2020c. “­Human Rights and Humanitarian Interventions in the International Arena.” In The SAGE Handbook of Po­liti­cal Science, edited by D. Berg-­Schlosser, B. Badie, and L. Morlino, vol. 3, 1456–1473. London: SAGE. https://­doi​.­org​/­10​.­4135​ /­9781529714333​.­n89. —­—­—. 2021. Aid Imperium: United States Foreign Policy and H ­ uman Rights in Post–­Cold War Southeast Asia. Ann Arbor: University of Michigan Press. Risse, T., S. C. Ropp, and K. Sikkink, eds. 2013. The Per­sis­tent Power of H ­ uman Rights: From Commitment to Compliance. Cambridge: Cambridge University Press. Roth, K. 2017. “The Dangerous Rise of Pop­u­lism: Global Attacks on ­Human Rights Values.” Journal of International Affairs 2017:79–84.

The Global H ­ uman Rights Regime • 21

—­—­—. 2020. “China’s Global Threat to H ­ uman Rights.” In ­Human Rights Watch World Report 2020. https://­w ww​.­hrw​.­org​/­sites​/­default​/­fi les​/­world​_­report​ _­download​/­hrw​_­world​_­report​_­2020​_­0​.­pdf. Sikkink, K. 2017. Evidence for Hope: Making H ­ uman Rights Work in the 21st ­Century. Prince­ton, NJ: Prince­ton University Press. Viola, L. A. 2020. The Closure of the International System. New York: Cambridge University Press. Walker, S. 2018. “Hungarian Leader Says Eu­rope Is Now ‘­Under Invasion’ by Mi­grants.” Guardian, March 15. https://­w ww​.­theguardian​.­com​/­world​/­2018​/­mar​/­15​/­hungarian​ -­leader​-­says​-­europe​-­is​-­now​-­under​-­invasion​-­by​-­migrants. World Justice Proj­ect. 2019. “WJP Rule of Law Index 2019.” February 24. https://­ worldjusticeproject​.­org​/­our​-­work​/­research​-­and​-­data​/­wjp​-­rule​-­law​-­index​-­2019. Zeid, R. A. H. 2018. “International Conference on the 25th Anniversary of the World Conference on H ­ uman Rights—­Statement by UN High Commissioner for H ­ uman Rights.” February 24. https://­w ww​.­ohchr​.­org​/­EN​/­NewsEvents​/­Pages​/­DisplayNews​ .­aspx​?­NewsID​=­23115&LangID ​=­E . Zürn, Michael. 2018. A Theory of Global Governance. Oxford: Oxford University Press.

Part 2

Effectiveness of International ­Human Rights Institutions

2

Transparency, Accountability, and Legitimacy within the UN Universal Periodic Review ALICE STOREY AND MARK ECCLESTON-­T URNER Transparency is widely considered to be central to good governance. This is not ­limited to domestic ­legal regimes, though that is where the notion originates and is most developed (Stiglitz 2001). More recently, the need for transparency at the international level has become more pronounced. As the International Law Association, in its Study on the Accountability of International Organ­izations, observed, “Transparency in . . . ​the decision-­making pro­cess and the implementation of . . . ​decisions” as well as “access to information open to all potentially concerned and/or affected by the decisions at stake” are constitutive of the “princi­ple of good governance” (International Law Association 2004). More specifically, transparency ensures accountability of the decision maker and the wider organ­ization (Grigorescu 2007). It further validates the pro­cess followed by the decision maker and legitimizes their power and authority to act, as well as legitimizing the decision reached (Farrall, Rubenstein, and Hovell 2009, 99). It is for ­these very reasons that vari­ous international organ­izations, including the United Nations (UN), have repeatedly sought to embrace increased transparency in decision making. Transparency is of increasing importance in the current era, 25

26 • Alice Storey and Mark Eccleston-­Turner

when UN agencies, such as the ­Human Rights Council, are subject to frequent populist attacks by governments around the world, which put the global h ­ uman rights framework at risk. Transparency is a tool to defend the UN against such attacks. This chapter investigates the manner in which transparency is approached by one of the key ­human rights agencies in the UN system: the Office of the High Commissioner for H ­ uman Rights’ (OHCHR) role as Secretariat of the UN ­Human Rights Council’s Universal Periodic Review (UPR). The UN ­Human Rights Council (UNHRC) was created to replace the Commission on H ­ uman Rights. The commission “was the first international organisation mandated to deal with international ­human rights” at the UN (Freedman 2013a, 9), yet, over time, it began to receive criticism for its deep-­rooted politicization, earning a reputation for addressing “­human rights violations in only a ­limited number of countries” (Charlesworth and Larking 2015, 13). For example, the commission allowed regionalism to manifest through tactical voting by geographic and po­liti­ cal blocs of states, which, in turn, permitted states to shield allies and exacerbate already fraught po­liti­cal relations (Freedman 2013b, 2012–2013). The UNHRC intended to avoid the prob­lems encountered by the commission. However, when a body, such as the UN, is composed of 193 governments that communicate and negotiate a vast array of diplomatic issues aside from ­human rights, politicization is unavoidable and must be expected (Freedman 2013b, 2012–2013). What was hoped to be the difference between the commission and the UNHRC was its new, innovative mechanism, the UPR. The UN General Assembly (UNGA) created the UPR in 2006 through Resolution 60/251 to be a universal and intergovernmental peer review pro­cess, intended to appraise ­every UN member state’s protection and promotion of ­human rights (UNGA Resolution 60/251, 2006). This chapter critically analyzes the transparency surrounding the OHCHR’s decision-­making role in the UPR. In par­tic­u­lar, it focuses on how the OHCHR compiles two of the key UPR reports for each member state UPR, identifying that this pro­cess is significantly lacking in transparency. The first case study was a review of the United States’ UPRs in the context of the abolition of capital punishment. The second case study examined the role of the UPR in improving access to HIV medi­cation in the top five HIV-­prevalent states: Eswatini (formerly Swaziland), Lesotho, Botswana, South Africa, and Namibia. This chapter uses the two reports compiled by the OHCHR in the six countries’ UPRs to the end of 2018 in order to suggest ways in which the compilation of the reports could be more transparent. By making the OHCHR’s role within the UPR clearer, this ­will legitimize its role within the global ­human rights framework. In turn, it ­will allow the OHCHR to be a prominent body for furthering ­human rights across the world through the UPR and beyond, thus minimizing the risk of populist states failing to engage with the UPR.

Transparency, Accountability, and Legitimacy • 27

Transparency in International Law Despite the title of this chapter, and the fact that the content of the chapter itself is ostensibly about transparency in international law, it is necessary to begin with the disclaimer that transparency is an underdeveloped concept in international law. As Boyle and McCall-­Smith (2013, 430) have pointed out, “It is relatively easy to discuss this topic in terms that a po­liti­cal phi­los­o­pher might begin to recognize. It is much harder to discuss it in terms familiar to an international ­lawyer.” Neumann and Simma (2013, 438) went further in their summary of the current state of play. In par­tic­u­lar, they highlighted why a lack of formal recognition of transparency in international law o­ ught to be concerning to international ­lawyers: “­There is remarkably l­ittle identifiable international law underpinning this rather significant constitutional development. It is easy enough to justify the princi­ple that law-­making should be transparent and to justify it. It is far harder to translate this conclusion into something an international ­lawyer can work with. This is, by itself, a remarkable and quite sobering conclusion.” Notwithstanding the fact that transparency is underdeveloped as a subject of international law, it is nevertheless impor­tant to the function of international law and the actors involved within it. As highlighted e­ arlier, transparency in re­spect of international organ­izations is largely framed through the lens of “good governance.” Despite this, Hovell (2009, 92, 97) has argued that ­there exists a general princi­ple across public international law embodied in a norm on transparency, which “confers a general right of access to information held by ­those exercising public powers and in relation to the exercise of ­those public powers.” We would not go as far as to accept Hovell’s argument that this general princi­ ple, while of value to the debate in this field, is suitably well developed within public international law. That is not to say that it is not a general princi­ple that is required, or even that public international law is not moving t­ oward this generalized princi­ple in re­spect of transparency, merely that the princi­ple is not yet sufficiently well developed to be said to exist. We instead view transparency as an “interstitial norm” (Lowe 2000): a guiding normative princi­ple for international law, and the actors involved in it. Such a normative princi­ple, while not grounded in treaty or custom, nor justiciable before any of the judicial forums of the international ­legal landscape, serves to direct pro­cesses and working practices of the relevant UN bodies, creating a “culture, condition, scheme or structure in which relevant information . . . ​is available” (Peters 2013, 534). While t­ here may be l­ ittle in terms of formal obligations in international law regarding transparency to bind the OHCHR, we nevertheless recognize it as a normative princi­ple that o­ ught to be actualized in the pro­ cesses and practices of the agency. This is to argue not that transparency is a positive merely in and of itself (though it could be argued that is it), but that

28 • Alice Storey and Mark Eccleston-­Turner

transparency is a key feature of global governance in re­spect of international institutions. Th ­ ere are two reasons why transparency ­ought to be pursued and promoted by international institutions. The first is the oft-­repeated man­tra that “sunlight is the best disinfectant”; without a clear understanding of the working practices and methods of international institutions, member states are less likely to have confidence and trust in t­ hose pro­cesses or be in position to develop and improve them as necessary. The second is that, despite it being a normative rather than justiciable princi­ple, transparency does serve as an enforcement mechanism that ensures the accountability of power­ful actors in global governance (Hale 2008, 73–78). Furthermore, in the context of this chapter, transparency is a core princi­ple of the UPR (UNGA Resolution 5/1 2007, para. 3(g)), intended to be pervasive throughout the pro­cess.

The OHCHR The OHCHR has existed in some format since the 1940s, gaining its “OHCHR” title in 1993. Its mandate, provided by UNGA Resolution 40/141, is to promote and protect all h ­ uman rights for all p­ eople. The OHCHR is part of the wider UN Secretariat and “injects a h ­ uman rights perspective into all UN programmes.” Its main functions are to provide technical expertise and capacity development to support implementation of international ­human rights standards, assist governments to fulfil their obligations, and speak out objectively on ­human rights violations. The OHCHR also serves as the Secretariat for the UNHRC (UNHRC Resolution 5/1 2007, Rule 14) and by extension the UPR. It is this specific role of Secretariat for the UNHRC in the UPR that this chapter investigates, in par­tic­u­lar how transparent its decision-­making roles are within the UPR.

The Universal Periodic Review The UPR was created in 2006 by UNGA Resolution 60/251 to be a universal and intergovernmental peer-­review pro­cess intended to appraise all UN member states’ protection and promotion of ­human rights. Resolution 5/1 clarifies that the UPR is based upon the Charter of the United Nations, the Universal Declaration of ­Human Rights, the ­human rights treaties to which the state is a party to, voluntary commitments and pledges, and international humanitarian law. In terms of the practicalities of the UPR, each state is to be reviewed in cycles; the first cycle took four years to complete, whereas the second cycle was extended to four and a half years (UNHRC Resolution 16/21 2011, para. 3). The third cycle was scheduled to be completed in 2020 but w ­ ill now end in 2021 due to the COVID-19 pandemic. In order for the UPR to function effectively, it encompasses many dif­fer­ent stages and requires cooperation from a range of actors.

Transparency, Accountability, and Legitimacy • 29

The UPR begins with the preparation and dissemination of the three key documents that the review is based upon. This leads to the review that takes place in Geneva, wherein recommendations from other UN member states are made as to how the state u­ nder review can better protect and promote h ­ uman rights. Following the review, the Working Group Report (also referred to as the Outcome Report) is compiled by the troika—­the three countries enlisted to assist with the organ­ization of the UPR process—­alongside the state ­under review and the OHCHR (UNGA Resolution 5/1 2007, para. 32). The UNHRC then considers and adopts the report at a plenary session some months ­later. Fi­nally, the follow-up to the review takes place wherein the accepted recommendations are implemented by the state u­ nder review. This chapter assesses the OHCHR’s involvement in preparing two of the three documents that each review is based upon: the Compilation of UN Information (Compilation Report) and the Summary of Stakeholders’ Information (Stakeholder Report). The Compilation Report brings together the comments and recommendations made by other UN bodies regarding h ­ uman rights in the state u­ nder review, including the Special Procedures and Treaty Bodies. Stakeholders, generally made up of nongovernmental organ­izations (NGOs), can submit reports to the UPR detailing the protection and promotion of ­human rights on the ground in each state. This provides the opportunity for NGO engagement in an other­wise po­liti­cally dominated forum. Once the submissions have been received, the OHCHR then summarizes them into a final document. It is this pro­cess that is analyzed for transparency in this chapter.

The OHCHR and the UPR: Case Study Examples Compilation Report When putting the Compilation Report together, the OHCHR must consider the reports, comments, and recommendations made by other UN bodies regarding h ­ uman rights in the state u­ nder review, since the state’s last UPR. For many states, including the United States, ­there is a plethora of documents to consider and summarize when compiling the final Compilation Report. However, despite the wealth of information that is often available to be included in the Compilation Report, it can be no more than ten pages in length (UNGA Resolution 2007, para. 15(b)). Due to the scale of condensing a large number of reports into a ten-­page document, it is unsurprising that impor­tant observations, comments, and recommendations are sometimes overlooked. For example, in the 2010 U.S. Compilation Report, the ­Human Rights Committee (the treaty body mandated with ensuring compliance with the International Covenant on Civil and Po­liti­cal Rights) was cited as welcoming “the 2002 Supreme Court decision that executions of mentally retarded criminals are cruel and unusual punishments” (UNHRC, Compilation of UN Information USA

30 • Alice Storey and Mark Eccleston-­Turner

2010, para. 25). The UPR’s function is not solely to criticize ­human rights standards—­human rights achievements and improvements should be celebrated too (Domínguez Redondo 2012). Therefore, it is understandable from consulting only the Compilation Report that the ­Human Rights Committee would congratulate the decision of the U.S. Supreme Court in Atkins v. V ­ irginia (2002). In this case, the Supreme Court struck down the death penalty as unconstitutional when applied to intellectually disabled (formerly known as mentally retarded) persons. However, upon reading the report of the H ­ uman Rights Committee (Concluding Observations USA 2006, para. 7), it becomes clear that this was not the full extent of its comments on this issue. It also stated, “The Committee welcomes [the U.S. Supreme Court’s] decision in Atkins v. V ­ irginia (2002), which held that executions of mentally retarded criminals are cruel and unusual punishments, and encourages the State party to ensure that persons suffering from severe forms of m ­ ental illness not amounting to ­mental retardation are equally protected.” This final section of the paragraph is arguably the most impor­tant, as the ­Human Rights Committee was encouraging an expansion of the Atkins decision to cover all serious ­mental illnesses, in order to bring the United States in line with international law (ECOSOC Safeguards 1989, para. 1(d)). However, this was omitted from the Compilation Report, and, as ­there is currently very ­little lit­er­a­ture on how the OHCHR decides on the content of the document, t­ here is no answer as to why this was not included. Moreover, in the 2011 Eswatini UPR, ­there ­were nine references to HIV from three UN bodies cited in the Compilation Report (UNHRC, Compilation of UN Information Swaziland 2011, paras. 10, 12, 20, 38, 50, 57, 58, 59). Although ­these references covered a number of points, including health care facilities, discrimination, orphans, and preventative mea­sures, the UN Country Team for Eswatini had provided a specific UPR report (Swaziland UN Country Team 2011) and stated that “Swaziland has the highest HIV prevalence in the world at 26% among the sexually active population.” This impor­tant statistic did not feature in the Compilation Report. Linked to this is the fact that eight individual stakeholder submissions made sixty references to HIV between them (UNHRC, Contributions to the Summary of Stakeholder’s Information 2011), but only six references from four stakeholders made it into the final report (UNHRC, Summary of Stakeholders Information Swaziland 2011, paras. 24, 63, 65). For instance, the Centre for H ­ uman Rights’ individual submission provided two clear recommendations on HIV, to comply with “the Abuja Declaration on HIV/ AIDS” by allocating “15% of its annual bud­get to the health sector” and implementing advocacy campaigns aimed at ending discrimination and stigma (Centre for ­Human Rights University of Pretoria 2011, 5). If this information had been made available to the member states through the Compilation Report, it may have been replicated when providing recommendations to Eswatini. Although in the 2010 Lesotho UPR the Compilation Report included eleven references to HIV from six UN bodies (UNHRC, Compilation of UN

Transparency, Accountability, and Legitimacy • 31

Information Lesotho 2010), in 2015 just five references came from three UN bodies (UNHRC, Compilation of UN Information Lesotho 2015). Three of ­these five references in 2015 came from an annex report proved by United Nations in Lesotho (UNLES or UNCT), which included contributions from the United Nations Development Programme, United Nations Volunteers, UNICEF, the World Health Organ­ization, the Food and Agriculture Organ­ization, the United Nations Population Fund, UNAIDS, and the World Food Programme (UNLES 2013). This annex had made eigh­teen references to HIV in total, whereas the final Compilation Report cited only five, further suggesting the need for transparency from the OHCHR as to how it collates its reports. In Botswana’s 2018 UPR, t­ here was no reference whatsoever to HIV in the Compilation Report. This is disappointing considering that Chile, in the 2013 UPR, had directly referred to information in the Compilation Report when recommending that Botswana “include[s] a gender perspective into its policies and programmes to combat HIV/AIDS, taking into account what has been pointed out by CEDAW” (Botswana Working Group Report 2018, para. 115.35). Furthermore, in the 2008 South African UPR, UNICEF’s individual submission made thirteen references to HIV and five in 2012, yet in both cycles t­ here was no reference made to UNICEF in the Compilation Report. Similarly, the UNCT made thirteen references to HIV in 2017 and UNESCO made two references, both in their individual submissions, yet none of this information was transferred to the main Compilation Report. The rationale for not including such information is not clear: this is inherently a prob­lem for the transparency and legitimacy of the pro­cess of the UPR. The Compilation Report is integral to the UPR pro­cesses, and the way in which the reports are drafted by the OHCHR needs to be better understood by states and other actors who participate in the UPR. The opacity of the Compilation Report’s development casts doubts upon the legitimacy of the pro­cesses themselves. De Frouville (2011, 251) has criticized the report for being “brief and selective.” The evidence gained from the two case studies backs up de Frouville’s assertions, and this pre­sents the question of the effectiveness of the Compilation Report: is it a necessary tool to collate UN ­human rights advice and recommendations, or is it just a nonexhaustive replication of work? Although the UPR should “not be overly burdensome to the concerned State or to the agenda of the [UNHRC]” (UNGA Resolution 5/1 2007, para. 3(h)), t­ here must also be enough information provided for the UPR to be influential on ­human rights on the ground. Adding weight to this argument, Chauville (2015, 92) found that the material in the Compilation Report “has been extensively used by countries making recommendations to the state ­under review.” Most government del­e­ga­tions do not have the resources to look through all UN documents for ­every state u­ nder review. Therefore, as the Compilation Report is being relied upon by the member states, it is imperative that the document is thorough, even if this involves some duplication of other h ­ uman rights mechanisms. This makes the transparency of the

32 • Alice Storey and Mark Eccleston-­Turner

report’s development all the more integral to the functioning and legitimacy of the UPR itself.

Stakeholder Report Civil society is encouraged to play an integral role in the UPR pro­cess, and this includes them being given the opportunity to submit a five-­page report on the ­human rights situation in the state u­ nder review. Resolution 5/1 (2007 para. 15(c)) sets out that this should include “additional, credible and reliable information provided by other relevant stakeholders.” ­There is no specific definition provided of “credible and reliable information,” although guidance has been produced by the OHCHR, which stakeholders can use as advisory material when compiling their individual reports (OHCHR n.d.). It is also impor­tant to note that the stakeholders do not have the benefit of reading the National Report before submitting their individual reports and so cannot respond directly to any assertions made by the state u­ nder review. In compiling the final Stakeholder Report, the OHCHR considers all of the individual stakeholder submissions and summarizes them into a ten-­page document. Clearly this is no easy task: in the U.S. UPR ­there ­were 103 individual reports in 2010 (UNHRC, Summary of Stakeholders Information 2010) and 91 in 2015 (UNHRC, Summary of Stakeholders Information 2015). Yet the individual reports are a key part of the UPR mechanism, as they provide a wealth of information on a range of h ­ uman rights issues on the ground. Despite this, similar to the Compilation Report, ­there is ­little lit­er­a­ture on how the OHCHR decides what information w ­ ill be selected and rejected from the individual reports to go into the final Stakeholder Report (Moss 2010, 132). To provide some insight into the drafting pro­cess, when Billaud undertook a three-­month internship with the drafting team, she noted that the OHCHR cannot synthesize any of the individual submissions, and therefore the report is “made up of a collection of direct quotes extracted from NGOs’ contributions” (Cowan 2015, 75). Furthermore, Charlesworth and Larking noted that the drafting teams have a “genuine desire” to “give consideration to issues raised by stakeholders who might not other­wise be heard” (2015, 17). This is imperative to the authenticity of the Stakeholder Report, given that some NGOs ­will not always have the funds to attend the review in Geneva. It is also a way of NGOs voicing the ­human rights situation on the ground, which, in turn, legitimizes the UPR pro­cess. Despite this, t­ here have been par­tic­u ­lar criticisms of the five-­page limit on individual submissions, as it has caused NGOs to feel “forced to be ‘selective and strategic’ in identifying a few key issues” to include in its individual report (Cowan 2015, 61). In fact, many NGOs ­will attach a number of lengthy appendices and w ­ ill direct readers to even lengthier submissions on their own websites (Cowan 2015, 61). For example, the United States H ­ uman Rights Network attached twenty-­five appendices to its 2010 submission to the U.S.

Transparency, Accountability, and Legitimacy • 33

UPR (UNHRC, Contributions to the Summary of Stakeholder’s Information 2010). The main issue with this is that most UN member states ­will not read ­these additional documents and therefore key information may be missed. To limit this issue to some extent, stakeholders are encouraged to provide joint submissions rather than individual reports, as this increases the maximum page limit from five to ten pages (OHCHR n.d.). However, despite this, case studies have found that impor­tant issues discussed by joint submissions often did not make it into the final report. For example, Eswatini’s 2011 UPR saw JS2, JS3, JS4, and JS5 provide ten references to HIV between them (UNHRC, Contributions to the Summary of Stakeholder’s Information 2011). Despite this, the final Stakeholder Report cited only two references from JS2 (UNHRC, Summary of Stakeholders Information Swaziland 2011, paras. 24, 65) and one reference from JS4 (UNHRC, Summary of Stakeholders Information Swaziland 2011, paras. 24, 63). Also in Eswatini’s 2011 review, Action for Southern Africa provided an annex to its individual stakeholder submission, which made thirty-­seven references to HIV in Eswatini (Action South Africa [ACTSA] 2011). However, t­ here was no mention of this in the main Stakeholder Report, and it is unlikely that the annex documents w ­ ill have been read by member state del­e­ga­tions. Botswana’s UPRs also highlighted a prob­lem with transparency from the OHCHR. In 2018, t­here ­were eight references to HIV made by three stakeholders in the individual submissions (UNHRC, Contributions to the Summary of Stakeholder’s Information 2018), yet ­there was only one reference in the final report. Currently, we do not know why that was, as t­ here is no guidance from the OHCHR as to how they compile their reports. This is particularly concerning as, in 2013, the CHR (2013, para. 13) individual submission noted that “statements have been made by po­liti­cal leaders that are at odds with the State’s international obligations. At a meeting on HIV prevention in prisons, Member of Parliament and Deputy Speaker of the National Assembly, Pono Moatlhodi, expressed that homosexuals w ­ ere ‘demonic and evil’ and defended his comments by ­later remarking that homo­sexuality was ‘a culture away from our culture.’ ” The government’s attitude ­toward the LGBT community in Botswana should have been directly shared with the other 192 UN member states. This is particularly impor­tant given that Botswana did not accept the recommendation from the Czech Republic in 2008 that “with regard to consensual same-­sex activity between adults, take mea­sures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention” (Botswana Working Group Report 2008, para. 92.24). In 2008, the South African National ­Human Rights Institution (SAHRC) was cited in South Africa’s main Stakeholder Report as commending the government for its “attempts to make medical care available to all South Africans, in accordance with its Constitution” but noting the strain HIV/AIDS has on this (UNHRC, Summary of Stakeholders Information South Africa 2008,

34 • Alice Storey and Mark Eccleston-­Turner

para. 28). However, upon reading SAHRC’s full submission, it had actually cited both the South African constitution and the United Nations Committee on Economic, Social and Cultural Rights (SAHRC 2008, para. 11). It is unclear why the OHCHR chose to refer only to domestic law rather than the international treaty body that SAHRC had cited in its report. In 2012, ­Human Rights Watch provided key information regarding the abuse and substandard medical care that ­women with HIV face in South Africa (­Human Rights Watch 2012, 2), but this was not referred to in the main Stakeholder Report. Moreover, World Vision South Africa (2012, para. 2.1.2) provided key statistics about HIV that ­were not included in the final report, including “29% of pregnant ­women who w ­ ere tested in 2008 w ­ ere HIV positive. In spite of this in 2006 and 2007 only 57% of newborns exposed to HIV received antiretroviral treatment.” In 2017, JS3 (2017, para. 38) reported that South Africa has not focused upon transgender p­ eople with HIV (“the country’s response to HIV/ Aids and psychosocial ser­vices are yet to turn their focus on the transgender and intersex communities”), which is something no other stakeholder had referenced. JS5 (2017, para. 25) also stated that police arrest sex workers for carry­ ing condoms, which makes them fear carry­ing them, leading to a higher risk of HIV transmission (“the police arrest sex workers solely for possessing condoms in order to extort money and sexually exploit them, making some sex workers afraid to carry condoms for fear of harassment. This increases the risk of HIV”). This begs the question of why this plethora of information regarding ­women, transgender ­people, and sex workers (some of the most vulnerable groups in society) was not included in the main reports. It is quite clear that the OHCHR must provide transparency around how it compiles t­ hese reports, in order to answer t­ hese impor­tant questions. To strengthen this point, t­ here are examples of where the information included in the main reports has had a positive impact. One instance can be seen in South Africa’s 2017 UPR. A recommendation from JS5 (2017, para. 57) was included in the main Stakeholder Report, meaning that it would have been read by South Africa and possibly the other member states too. “JS5 recommended: increasing sensitization efforts on HIV/AIDS prevention, especially among young w ­ omen, and on changing social attitudes on stigmatisation of persons living with HIV/ AIDS; ensuring that counselling and testing facilities ­were available in all public hospitals, clinics and primary healthcare facilities throughout the country, especially in rural areas; expanding the anti-­retroviral treatment programme to ensure that all persons living with HIV have access to antiretroviral drugs.” It appears that this was identified by Angola, as it provided a recommendation during the 2017 review to “strengthen national policies in the area of public health coverage, particularly in the fight against HIV/AIDS in rural areas” (South Africa Report of the Working Group 2017, para. 139.170). This was accepted by South Africa (South Africa Report of the Working Group Addendum 2017, para. 28).

Transparency, Accountability, and Legitimacy • 35

Another positive example can be seen in Namibia’s 2011 UPR, wherein the Netherlands asked an advance question: “What mea­sures are being taken to address sterilisation of w ­ omen?” (Namibia Advance Questions 2011, 2). This related to the sterilization of ­women with HIV without their consent in Namibia, which had been referenced in the Compilation Report (UNHRC, Compilation of UN Information Namibia 2011, para. 15) and the Stakeholder Report (UNHRC, Summary of Stakeholders Information, para. 14). Furthermore, two specific recommendations w ­ ere made on this point from the United Kingdom (“investigate reports of forced or coerced sterilisation in HIV-­positive ­women and that it takes steps to ensure ­women are educated about the effects of sterilisation and options available to them”) (Namibia Report of the Working Group 2011, para. 96.54) and Canada (“issue clear directives to all health officials prohibiting the sterilization of ­women living with HIV/AIDS without their informed consent”) (Namibia Report of the Working Group 2011, para. 96.60). ­These two recommendations w ­ ere accepted and also implemented, as the Namibian government had prohibited such sterilization by the 2016 UPR (UNHRC, Compilation of UN Information Namibia 2016, para. 57). This indicates that member states do take note of t­ hese documents compiled by the OHCHR when formulating recommendations or advance questions and that the UPR can have a direct impact on h ­ uman rights on the ground. As with the Compilation Report above, to understand why certain issues are and are not included in the Stakeholder Report, more transparency from the OHCHR is needed regarding the pro­cess utilized to decide how it selects the content of the final report (Storey forthcoming). This in turn w ­ ill strengthen the legitimacy of the pro­cesses undertaken by the OHCHR. Transparency of this kind is central to the legitimacy of the OHCHR involvement in the UPR pro­cess and the functioning and legitimacy of the UPR itself.

Recommendation The examples elicited from the two case studies do not show a pattern of why certain information is included in or omitted from the reports. While any omissions do not appear to be intentional, t­ here would be g­ reat benefit to the key UPR actors if it was understood what the OHCHR’s criteria are for selecting information to feature in the final reports. It is clear that the more comprehensive the two reports are, the more vital information w ­ ill be transferred to the member states making the recommendations on h ­ uman rights issues. This would provide further opportunities for h ­ uman rights issues to be addressed on the ground, thus increasing the legitimacy of the UPR and minimizing the current risks facing the global h ­ uman rights regime. The OHCHR already provides information on how the stakeholders should compile their individual submissions and the content they should include (OHCHR, A Practical Guide for Civil Society 2014; OHCHR n.d.). Therefore, this recommendation is achievable, and

36 • Alice Storey and Mark Eccleston-­Turner

realizing this recommendation would not be a particularly onerous task for the OHCHR. However, this could have a wide-­ranging impact upon the efficacy of the UPR. Increasing the transparency of how the OHCHR compiles the two reports could potentially lead to real changes for ­human rights on the ground, as ­these reports are influential in the UPR pro­cess (UNGA Resolution 5/1 2007, para. 4(a)). To implement this change, Storey (forthcoming) suggests that the OHCHR could provide a briefing paper on how it compiles each report, transparently outlining its methodology for selecting and omitting certain information. This could utilize a similar format to its information on the content of stakeholder submissions, making the briefing paper available on its UPR repository on the UN website.

Conclusion As was noted in the introduction, the International Law Association, in its Study on the Accountability of International Organ­izations, stated that “transparency in . . . ​the decision-­making pro­cess and the implementation of . . . ​decisions” as well as “access to information open to all potentially concerned and/or affected by the decisions at stake” are constitutive of the “princi­ple of good governance” (International Law Association 2004). This is especially true of UPR: transparency is a core princi­ple of UPR, intended to be pervasive throughout the pro­ cess, and greater transparency in the work of the OHCHR ­will guard the office against many of the criticisms that ultimately led to the Commission on H ­ uman Rights’ abandonment. This is particularly impor­tant in an era of rising pop­u­ lism around the world. UN agencies need legitimacy on the global stage to ensure their work can be done unabated. By improving the transparency of their pro­ cesses in the UPR, the OHCHR ­will enhance the effectiveness of the UPR itself, ensuring it can achieve its stated goals, and also enhance the legitimacy of the UPR pro­cess and the wider OHCHR.

References Action South Africa (ACTSA). 2011. “Individual Submission of Stakeholder Information for the Universal Periodic Review of the Kingdom of Swaziland.” www​.­ohchr​ .­org​/­EN​/­HRBodies​/­U PR​/­Pages​/­U PRSZStakeholdersInfoS12​.­aspx. Atkins v. V ­ irginia, 536 U.S. 304 (2002). Boyle, A., and K. McCall-­Smith. 2013. “Transparency in International Law Making.” In Transparency in International Law, edited by Andrea Bianchi and Anne Peters, 419–435. Cambridge: Cambridge University Press. Centre for ­Human Rights University of Pretoria. 2011. “Submission to the Universal Periodic Review of Swaziland.” www​.­ohchr​.­org​/­EN​/­HRBodies​/­U PR​/­Pages​ /­U PRSZStakeholdersInfoS12​.­aspx. Charlesworth, H., and E. Larking. 2015. “Introduction: The Regulatory Power of the UPR.” In ­Human Rights and the Universal Periodic Review: Rituals and Ritualism,

Transparency, Accountability, and Legitimacy • 37

edited by Hilary Charlesworth and Emma Larking, 1–21. Cambridge: Cambridge University Press. Chauville, R. 2015. “The Universal Periodic Review’s First Cycle: Successes and Failures.” In ­Human Rights and the Universal Periodic Review: Rituals and Ritualism, edited by Hilary Charlesworth and Emma Larking, 87–108. Cambridge: Cambridge University Press. Commonwealth H ­ uman Rights Initiative. 2013. “Stakeholder Report.” www​.­ohchr​.­org​ /­EN​/­HRBodies​/­U PR​/­Pages​/­U PRBWStakeholdersInfoS15​.­aspx. Cowan, J. K. 2015. “The Universal Periodic Review as a Public Audit Ritual: An Anthropological Perspective on Emerging Practices in the Global Governance of ­Human Rights.” In ­Human Rights and the Universal Periodic Review: Rituals and Ritualism, edited by Hilary Charlesworth and Emma Larking, 42–64. Cambridge: Cambridge University Press. de Frouville, O. 2011. “Building a Universal System for the Protection of ­Human Rights: The Way Forward.” In New Challenges for the UN ­Human Rights Machinery: What ­Future for the UN Treaty Body System and the H ­ uman Rights Council Procedures?, edited by M. Cherif Bassiouni and William Schabas, 241–261. Cambridge: Intersentia. Domínguez Redondo, E. 2012. “The Universal Periodic Review—­Is Th ­ ere Life beyond Naming and Shaming in H ­ uman Rights Implementation?” New Zealand Law Review 4:673. Farrall, J. M., K. Rubenstein, and D. Hovell. 2009. “The Deliberative Deficit: Transparency, Access to Information and UN Sanctions.” In Sanctions, Accountability and Governance in a Globalized World, edited by Jeremy Farrall and Kim Rubenstein, 92–122. Cambridge: Cambridge University Press. Freedman, R. 2013a. The United Nations ­Human Rights Council: A Critique and Early Assessment. London: Routledge. —­—­—. 2013b. “The United Nations ­Human Rights Council: More of the Same?” Wisconsin International Law Journal 31:208. Grigorescu, A. 2007. “Transparency of Intergovernmental Organ­izations: The Roles of Member States, International Bureaucracies and Nongovernmental Organ­izations.” International Studies Quarterly 51:625–648. Hale, T. 2008. “Accountability, and Global Governance.” Global Governance 14 (1): 73–94. ­Human Rights Watch. 2012. “Stakeholder Report 2012.” www​.­ohchr​.­org​/­EN​/­HRBodies​​ /­U PR​/­Pages​/­U PRZAStakeholdersInfoS13​.­aspx. International Law Association. 2004. “Report of the Seventy-­First Conference.” London: International Law Association. Joint Submission 3. 2017. “Stakeholder Report 2017.” www​.­ohchr​.­org​/­EN​/­HRBodies​ /­U PR​/­Pages​/­U PRZAStakeholdersInfoS27​.­aspx. Joint Submission 5. 2017. “Stakeholder Report 2017.” www​.­ohchr​.­org​/­EN​/­HRBodies​ /­U PR​/­Pages​/­U PRZAStakeholdersInfoS27​.­aspx. Lowe, V. 2000. “The Politics of Law-­Making: Are the Method and Character of Norm Creation Changing?” In The Role of Law in International Politics: Essays in International Relations and International Law, edited by M. Byers, 207–226. Oxford: Oxford University Press. Moss, L. C. 2010. “Opportunities for Nongovernmental Organ­ization Advocacy in the Universal Periodic Review Pro­cess at the UN H ­ uman Rights Council.” Journal of ­Human Rights Practice 2 (1): 122–150. Neumann, T., and B. Simma. 2013. “Transparency in International Adjudication.” In Transparency in International Law, edited by Andrea Bianchi and Anne Peters, 436–476. Cambridge: Cambridge University Press.

38 • Alice Storey and Mark Eccleston-­Turner

Office of the High Commissioner for ­Human Rights (OHCHR). n.d. “Universal Periodic Review: Information and Guidelines for Relevant Stakeholders’ Written Submissions.” www​.­ohchr​.­org​/­Documents​/­HRBodies​/­U PR ​/­TechnicalGuideEN​ .­pdf. OHCHR. 2014. “Universal Periodic Review: A Practical Guide for Civil Society.” www​ .­ohchr​.­org​/­EN​/­HRBodies​/­U PR ​/­Documents​/­PracticalGuideCivilSociety​.­pdf. Peters, A. 2013. “­Towards Transparency as a Global Norm.” In Transparency in International Law, edited by Andrea Bianchi and Anne Peters, 534–607. Cambridge: Cambridge University Press. South African National H ­ uman Rights Institution (SAHRC). 2008. “NHRI Report 2008.” www​.­ohchr​.­org​/­EN​/­HRBodies​/­U PR​/­Pages​/­U PRSouthAfricaStakeholders InfoS1​.­aspx. Stiglitz, J. E. 2001. “On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life.” In The Rebel Within, edited by Ha-­Joon Chang, 250–278. London: Wimbledon. Storey, A. forthcoming. “Challenges and Opportunities for the United Nations’ Universal Periodic Review: A Case Study on Capital Punishment in the USA.” UKMC Law Review 90 (1). Swaziland UN Country Team. 2011. “United Nations Country Team Report for the Universal Periodic Review.” https://­lib​.­ohchr​.­org​/­HRBodies​/­U PR​/­Documents​ /­session12​/­SZ​/­U NCT​-­eng​.­pdf. UNGA Resolution 60/251. April 3, 2006. UNGA Resolution 5/1. June 18, 2007. UN H ­ uman Rights Committee. 2006. “Concluding Observations of the H ­ uman Rights Committee—­United States of Amer­i­ca” (UN Doc CCPR/C/USA/CO/3/ Rev1). December 18. UN H ­ uman Rights Council (UNHRC). 2008. “Summary of Stakeholders Information—­South Africa” (UN Doc A/HRC/WG.6/1/ZAF/3). March 11. —­—­—. 2010a. “Compilation of UN Information—­Lesotho” (UN Doc A/HRC/ WG.6/8/LSO/2). February 19. —­—­—. 2010b. “Compilation of UN Information—­Namibia” (UN Doc A/HRC/ WG.6/10/NAM/2). November 10. —­—­—. 2010c. “Compilation of UN Information—­United States of Amer­i­ca” (UN Doc A/HRC/WG6/9/USA/2). August 12. —­—­—. 2010d. “Contributions for the Summary of Stakeholders’ Information.” www​ .­ohchr​.­org​/­EN​/­HRBodies​/­U PR​/­Pages​/­U PRUSStakeholdersInfoS9​.­aspx. —­—­—. 2010e. “Summary of Stakeholders Information—­Namibia” (UN Doc A/HRC/ WG.6/10/NAM/3). November 8. —­—­—. 2010f. “Summary of Stakeholders Information—­United States of Amer­i­ca” (UN Doc A/HRC/WG.6/9/USA/3/Rev1). October 14. —­—­—. 2011a. “Advance Questions—­U NHRC.” —­—­—. 2011b. “Compilation of UN Information—­Swaziland” (UN Doc A/HRC/ WG.6/12/SWZ/2). July 25. —­—­—. 2011c. “Contributions to the Summary of Stakeholder’s Information.” www​ .­ohchr​.­org​/­EN​/­HRBodies​/­U PR​/­Pages​/­U PRSZStakeholdersInfoS12​.­aspx. —­—­—. 2011d. “Report of the Working Group on the Universal Periodic Review—­ Namibia” (UN Doc A/HRC/17/14). March 24. —­—­—. 2011e. “Resolution 16/21.” March 25. —­—­—. 2011f. “Summary of Stakeholders Information—­Swaziland” (UN Doc A/ HRC/WG.6/12/SWZ/3). July 22.

Transparency, Accountability, and Legitimacy • 39

—­—­—. 2014. “Compilation of UN Information—­Lesotho” (UN Doc A/HRC/ WG.6/21/LSO/2). November 12. —­—­—. 2015a. “Compilation of UN Information—­Namibia” (UN Doc A/HRC/ WG.6/24/NAM/2). November 23. —­—­—. 2015b. “Summary of Stakeholders Information—­United States of Amer­i­ca” (UN Doc A/HRC/WG.6/22/USA/3). February 16. —­—­—. 2017a. “South Africa Report of the Working Group” (UN Doc A/HRC/36/16). July 18. —­—­—. 2017b. “South Africa Report of the Working Group Addendum” (UN Doc A/ HRC/36/16/Add.1). September 19. —­—­—. 2018a. “Contributions for the Summary of Stakeholder’s Information.” www​ .­ohchr​.­org​/­EN​/­HRBodies​/­U PR​/­Pages​/­U PRBotswanaStakeholdersInfoS29​.­aspx. —­—­—. 2018b. “Report of the Working Group on the Universal Periodic Review—­ Botswana” (UN Doc A/HRC/38/8). April 11. United Nations Economic and Social Council (ECOSOC). 1989. “Implementation of the Safeguards Guaranteeing Protection of the Rights of ­Those Facing the Death Penalty” (ECOSOC Res 1989/64). May 24. United Nations in Lesotho (UNLES). 2013. “Compilation of UN Info for the Second Cycle of the Universal Periodic Review (UPR) Mechanism.” www​.­ohchr​.­org​/­EN​ /­HRBodies​/­U PR​/­Pages​/­U PRLSUNContributionsS21​.­aspx. World Vision South Africa. 2012. “Stakeholder Report 2012.” www​.­ohchr​.­org​/­EN​ /­HRBodies​/­U PR​/­Pages​/­U PRZAStakeholdersInfoS13​.­aspx.

3

­After Obama The African Group at the UN ­Human Rights Council EDUARD JORDAAN

The African Group entered the UN ­Human Rights Council (HRC), which replaced the UN Commission on ­Human Rights in 2006, with a reputation for obstructing the advancement of h ­ uman rights in UN forums. The HRC’s forty-­ seven seats are distributed according to the size of the five regional groupings at the UN. The African Group and Asian Group have thirteen seats each, the Latin American and Ca­rib­bean Group has eight, the Western Eu­ro­pean and ­Others Group has seven, and the Eastern Eu­ro­pean Group has six. Membership is for three years. States may not be immediately reelected a­ fter two consecutive terms. During the HRC’s early years, the African Group lived up to this regressive reputation. The African Group’s voting power and cohesion made it formidable obstacle to a progressive ­human rights agenda (Ramcharan 2011). During this period, African states protected the governments of Sudan and the Demo­cratic Republic of the Congo (DRC) from international scrutiny, tried to curtail the in­de­pen­dence of the “special procedures” h ­ uman rights investigative mechanism, and attempted to weaken the Universal Periodic Review, the HRC’s new peer review mechanism. The African Group was also party to the Non-­A ligned Movement’s shielding of the Sri Lankan government for its brutal actions during the denouement of the country’s civil war. 40

­After Obam • 41

Following this inauspicious start, in late 2010, the African Group, along with the rest of the HRC, began to move in a liberal, human-­rights-­friendly direction. Whereas in November 2006 the African Group had complained that to remind Sudan of its primary responsibility for the ­human rights of all its citizens was an example of “naming and shaming” (Algeria 2006), in December 2010 the African Group and the United States quickly convened a special session on the vio­lence that resulted from a disputed election in Côte d’Ivoire. In addition, in March 2011 the African Group assented to suspending Libya from the HRC ­after Gaddafi brutally cracked down on antiregime protests. Compare Libya’s suspension with the African Group’s successful insistence that Libya become chair of the Commission of ­Human Rights in 2003. HRC action on Côte d’Ivoire and Libya was part of a larger pattern. As part of the deal making over the HRC’s institutional setup, in 2007 country-­specific mandates on Cuba and Belarus w ­ ere terminated. For the HRC’s first five years, ­there ­were no new country mandates, and the HRC strug­gled to keep alive many of the ones that had been carried over from the commission, notably the mandates on Sudan and the DRC. In March 2011, the HRC created its first new country-­specific special procedures mandate—on Iran. In August 2011, the HRC created an even stronger mechanism—­a commission of inquiry—on Syria where a civil war was in its early stages. In June 2012, the HRC built on a report from the High Commissioner of H ­ uman Rights to create a special procedures mandate on Belarus. In March 2013, the HRC established a commission of inquiry on North ­Korea to investigate ­human rights violations in the country “with a view to ensuring full accountability, in par­tic­u ­lar where t­ hese violations may amount to crimes against humanity” (UNHRC 2013a). The commission of inquiry published its impactful report in February 2014 (UNHRC 2014a; Piccone 2017). In addition to pro­gress on country-­specific issues, the HRC also moved in a more liberal h ­ uman rights direction on po­liti­cal rights. During the HRC’s early years, it did not adopt resolutions on new aspects of po­liti­cal rights. Rather, between 2007 and 2010, the HRC a­ dopted annual resolutions on the defamation of religions, which aimed to alter international law to prohibit speech critical of religion and religious figures. In 2008, developing countries subverted the mandate of the Special Rapporteur on the right to freedom of opinion and expression (UNHRC 2008), shifting it from focusing on promoting freedom of expression to “policing” this right (Canada 2008). In 2010, however, ­things began to change. In September 2010, the HRC ­adopted a first resolution on the right to peaceful assembly and association. Following negotiations between the United States and the Organisation of Islamic Cooperation (OIC), the HRC, in March 2011, replaced the defamation of religions resolutions with a resolution that focused on protecting religious believers rather than religions (UNHRC 2011a). In September 2011, the HRC convened a panel discussion on the right to peaceful protest and ­adopted a number of resolutions on the issue. In June 2012,

42 • Eduard Jordaan

the United States and Brazil led the HRC to adopt the first of a new series of resolutions on h ­ uman rights and the internet, which had the right to f­ ree expression at its center. In light of frequent complaints about the election of rights-­abusing states to HRC membership, one might think that the above-­described re­orientation of the HRC stemmed from an improvement in the domestic rights profiles of HRC members. Surprisingly, this was not the case. In fact, the HRC membership in 2010 and 2011 was worse than in the HRC early years. During the 2006–20067 term, twenty-­five HRC members ­were “­free,” according to Freedom House’s categories, and twelve ­were “not ­free.” During the 2010–2011 term, however, only eigh­teen members ­were “­free,” while thirteen ­were “not ­free.” During the 2011– 2012 term, twenty council members w ­ ere “­free” and twelve “not f­ ree.” The HRC’s change of course also did not originate in the Arab Spring as some have argued ­because the Côte d’Ivoire special session and the resolution on peaceful assembly and association predated this event. Rather, the HRC’s and indeed the African Group’s shift in a liberal direction had much to do with American influence (Jordaan 2016). Above I have already drawn attention to American involvement in a number of pro-­human-­rights initiatives on the HRC. ­Under George W. Bush the HRC did not seek membership of the HRC and in June 2008 restricted its engagement with the HRC almost completely. ­Under the Obama administration, however, the United States joined the HRC in June 2009. The HRC’s liberal redirection relied on a mixture of material and soft power and the manner of the United States’ diplomacy. Specifically, U.S. diplomacy ­under Obama entailed extensive diplomatic engagement (Piccone 2017), breaking ­free from a West-­and-­the-­rest mold, putting more effort into building cross-­regional partnerships, approaching other del­e­ ga­tions as equals, listening carefully to their concerns, and appealing to their own ­human rights histories (­Human Rights First 2013). The HRC’s early strug­gles—­a period when the United States was not member and the EU was unable to provide leadership (Smith 2010)—­was of a piece with claims that ­human rights are in crisis ­because of a decline of the West. The HRC’s initial per­for­mance matched Stephen Hopgood’s influential argument that we are approaching the “endtimes of ­human rights” ­because now that the unipolar moment is over “the institutions that are built on liberal hegemony are fatally at risk” (Hopgood 2013, 142). However, the Obama administration’s ability to steer the HRC t­ oward more liberal outcomes suggested that the funeral rites for international ­human rights and the liberal order had been performed prematurely. If the African Group and the HRC’s shift ­toward ­human rights was indeed largely the result of American influence, w ­ ill the African Group remain on its liberal path in the absence of a supportive U.S. administration? Indeed, the election of Donald Trump as U.S. president offered an ideal opportunity to examine this question. Shortly ­after assuming office, the Trump administration began

­After Obam • 43

to criticize the HRC (Revesz 2017). In June 2018, ­after eigh­teen months of complaining, the United States withdrew from the HRC. While ­there ­were some continuities with previous administrations—­the administration of George W. Bush, for instance, also attacked the HRC—­Trump spoke and acted with a level of disdain for ­human rights and multilateralism that was unpre­ce­dented among recent U.S. presidents (Regilme 2019). Scholars mostly agree with Hopgood’s assessment that the era of Western dominance is over, but not all are as certain as Hopgood about the consequence of this decline. John Ikenberry remarks that while the f­ uture w ­ ill be less Western, it is unclear if it ­will be less liberal. Ikenberry argues that for liberal order— of which ­human rights is one aspect—to endure, it would have to find more support outside its traditional base in the West (Ikenberry 2008). During the Obama era, the African Group was party to—or at least acquiesced in—­the spread of liberal princi­ples. ­Will the African Group remain on this trajectory? A comparison of the African Group’s actions on the HRC during and a­ fter the Obama era w ­ ill help us see w ­ hether we face a crisis of h ­ uman rights and give insight into the prospects for sustaining a liberal value such as ­human rights in a post-­Western world. To examine ­whether the African Group’s rec­ord on po­liti­ cal rights and country-­specific resolutions deteriorated in the Trump era, this chapter considers resolutions that span the Obama and Trump presidencies and on which voting, ­whether on amendments to the resolution or on the resolution itself, took place. In the case of country-­specific situations, this means resolutions on Belarus, Burundi, Iran, and Syria. In the case of po­liti­cal rights, four series of resolutions meet the requirements: h ­uman rights defenders; ­human rights, democracy, and the rule of law; civil society space; and peaceful protest.

Country-­Specific Resolutions This section introduces the four country-­specific resolutions and pre­sents the African Group’s voting rec­ord on them. Figure 3.1 traces the African Group’s voting on the four sets of country-­specific resolutions. The score on the vertical axis was derived in the following way. Africa occupies thirteen of the HRC’s forty-­seven seats. A single vote in ­favor of a country-­resolution was given a score of one. A vote against a resolution was scored as minus one, while an abstention received zero. For example, if four African countries voted for a resolution, six against, and three abstained, this set of votes would be scored as minus two. From 2011 to 2019, the HRC ­adopted thirty-­two resolutions on the Syrian regime’s brutal response to the 2011 protests and the ensuing civil war. Beyond the usual denouncements and expressions of concern, the Syria resolutions created and regularly renewed a commission of inquiry into violations of international ­human rights law in Syria since March 2011 with the intention to hold perpetrators to account (UNHRC 2011b).

44 • Eduard Jordaan

FIG. 3.1   African Group voting on country situations, 2011–2019

As figure 3.1 shows, the African Group quickly became very supportive of the Syria resolutions. ­A fter almost all African HRC members voted in ­favor of the resolutions in 2012 and 2013, in 2014 African support began to drop. By 2019, only two or three African states voted for the resolution—­there ­were three resolutions in 2019—­while Egypt and Eritrea always opposed it and the rest abstained.1 In addition, African sponsorship of the Syria resolutions has declined. In 2012 and 2013, states like Botswana, Cape Verde, Djibouti, Libya, Morocco, and Tunisia would act as main sponsors of the resolution. Since March 2014, Morocco has been the only African main sponsor of t­ hese resolutions. African cosponsorship has also declined. Since June 2016, only Botswana and, on one occasion each, Ghana and Sierra Leone cosponsored the resolutions, whereas during 2012 at least four African states cosponsored. From 2011 to 2019 the HRC passed nine resolutions on ­human rights in Belarus. ­A fter the Belarus­sian government’s crackdown on protests against the flawed December 2010 elections, the HRC a­ dopted, in June 2011, a resolution asking the OHCHR to report on the ­human rights violations that followed the aforementioned election (UNHRC 2011c). In June 2012, following increased restrictions on the freedoms of association, assembly, opinion, and expression; torture of persons in custody; impunity of ­human rights violators; harassment of civil society organ­izations; and violations of judicial due pro­cess, the HRC institutionalized its scrutiny of ­human rights in Belarus by appointing a Special Rapporteur on h ­ uman rights in the country (UNHRC 2012a). The mandate has been renewed e­ very year since then. The African Group was never strongly ­behind the resolutions on Belarus. Support peaked in 2012 and 2013 when five African states voted in ­favor of the resolution.2 More recently, African states have tended to abstain, with at least ten abstentions on each occasion since 2015. Botswana cosponsored the 2012 resolution, but since then no African state has acted as main sponsor or cosponsor.

­After Obam • 45

In March 2011, the HRC a­ dopted the first of what has become an annual resolution on h ­ uman rights in Iran. The 2011 resolution created a special procedures mandate on the country (UNHRC 2011d). Subsequent resolutions renewed the Special Rapporteur’s mandate, called on Iran to cooperate with the Special Rapporteur (whom Iran has yet to allow into the country), and asked for reports on Iran. The 2017 report, for instance, noted violations such as arbitrary detention; illegitimate prosecution; the persecution of h ­ uman rights defenders, journalists, students, trade ­union leaders, and artists; a high level of executions; torture; widespread violations of the right to a fair trial and due pro­cess of law; and extensive discrimination against w ­ omen and religious and ethnic minorities (UNHRC 2017a). Of the nine Iran resolutions, only once did the resolution win the support of an absolute majority of HRC members. More typical is for a large number of states to abstain. The highpoint of African support for ­t hese resolutions happened in 2012 and 2013, when four African states voted in ­favor and nine abstained.3 From 2014 to 2018, ­either one or two states African states voted yes. In 2019, three African states supported the resolution. The last time an African state sponsored or cosponsored the resolution was in 2013. In September 2016, the HRC created a commission of inquiry to investigate pos­si­ble ­human rights crimes committed in Burundi since April 2015 with the aim of holding perpetrators accountable. In September 2017, the HRC had to consider two conflicting resolutions on Burundi. Although Burundi (2018) rejected the report that followed from the 2016 resolution—­the report identified government forces as the “principal perpetrators” of extensive and “extremely cruel” violations (UNHRC 2017b, 4–6)—an EU resolution proposed extending the commission of inquiry’s mandate by one year (UNHRC 2017c). The second 2017 resolution, sponsored by the African Group, tried to protect the Burundian government. The African Group did this by sending three OHCHR experts to Burundi “to collect and preserve information . . . ​in cooperation with the Government of Burundi, and to forward to the judicial authorities of Burundi such information in order to establish the truth and ensure that the perpetrators of deplorable crimes are all accountable to the judicial authorities of Burundi” (UNHRC 2017d). In other words, the resolution wanted the Burundian government to investigate itself and gave it the final say over the report. In 2018 and 2019, the HRC renewed the commission of inquiry’s mandate for another year. From 2016 to 2019, ­there ­were four EU-­led resolutions on Burundi (creating a commission of inquiry and renewing its mandate) and one African Group resolution. All African states, except Botswana, which abstained, voted for the African Group’s resolution. Moreover, the African Group’s voting on the EU resolutions has been negative overall, deteriorating somewhat ­after the initial vote establishing the commission. In 2016, 2018, and 2019 only one African state voted for the EU’s resolution on Burundi, while in 2017 both Botswana and Rwanda

46 • Eduard Jordaan

voted for it. Typically, African states have abstained from this resolution, with opposition to it ranging from two African states (in 2016) to five (in 2017 and 2019).

Po­liti­cal Rights This section pre­sents the four series of po­liti­cal rights resolutions as well as the African Group’s voting rec­ord on the amendments that preceded ­these resolutions. The focus is on the amendments ­because often this is where the real action lay and ­because many of the resolutions discussed ­here ­were ­adopted without a vote. Figure 3.2 traces the African Group’s voting on the four sets of resolutions. The score on the vertical axis is derived in the following way: Each amendment vote is assigned a score. A single vote against an anti-­human-­rights amendment is given a score of one, while a vote for such an amendment is scored as minus one. An abstention receives zero. For example, if four African countries voted for an anti-­human-­rights amendment, six voted against, and three abstained, this set of votes would be scored as two. Since t­ here ­were often numerous amendment votes per resolution, each score on the chart below is the average of the African Group amendment scores per specific resolution. The HRC’s first resolution on h ­ uman rights defenders—to renew the Special Rapporteur’s mandate, carried over from the Commission on H ­ uman Rights—­ was ­adopted in 2008. The 2011 and 2013 resolutions passed with ­little opposition, but, in 2014, Rus­sia began tabling hostile amendments. In 2014, t­here ­were four relatively mild amendments, proposing, for instance, to “take note” rather than to “take note with appreciation” of the Special Rapporteur’s report (UNHRC 2014b). All four amendments w ­ ere rejected by vote. In 2016, Rus­sia tabled thirty hostile amendments to the resolution to renew the mandate of the Special Rapporteur. None of the amendments w ­ ere a­ dopted. One type of proposal was to replace the term “­human rights defenders” with “individuals, groups and organs of society,” seemingly to prevent ­human rights defenders from enjoying specific protections. In 2017, Rus­sia proposed five unfriendly amendments to the resolution (UNHRC 2017e), all of which ­were rejected. In 2019, a resolution focused on environmental ­human rights defenders passed without attempts at hostile amendment or a vote on the resolution. As figure 3.2 shows, the African Group’s voting on amendments related to the ­human rights defenders resolutions defies expectations. The jumps in support are small, but the rec­ord shows that African states have become more willing to defend ­these resolutions. In 2014, t­ here ­were few abstentions, with African states voting e­ ither for or against the amendments. In 2016, the pattern was dif­fer­ent, with most African states abstaining and at the most four African states voting against the hostile amendments at any one point. From a h ­ uman rights perspective, ­these outcomes ­were slightly better than 2014. In 2017, t­ here ­were again few abstentions, and African states that opposed the unfriendly amendments

­After Obam • 47

FIG. 3.2   African Group voting on amendments to po­liti­cal rights resolutions, 2013–2019

outnumbered ­those that supported them. Instructive too is the fact that when the only h ­ uman rights defenders’ resolution went to a vote, in 2016, nine out of thirteen African states supported the resolution. The relative ease with which the 2019 resolution was ­adopted is encouraging for ­human rights, although it should be noted that Rus­sia, which has been the main antagonist to the resolution, was not a member of HRC at the time. Following a 2012 resolution (UNHRC 2012b) and a panel discussion in 2013 (UNHRC 2013b), in March 2015 the HRC created a forum to promote dialogue and cooperation on the intersection between ­human rights, democracy, and the rule of law (UNHRC 2015a). The main point of dispute during consideration of the 2015 resolution was over NGO participation in this forum. The draft resolution wanted states, UN agencies, international and regional organ­izations, national h ­ uman rights organ­izations, experts, and NGOs with ECOSOC consultative status to participate, as well as, contentiously, “other non-­governmental organisations whose aims and purposes are in conformity with the spirit, purposes and princi­ples of the Charter of the UN based on . . . ​an open and transparent accreditation procedure . . . ​which ­will provide for timely information on the participation of and consultations with the states concerned” (UNHRC 2015b). China sought two changes to this paragraph. The first required that other NGOs re­spect “the sovereignty, territorial integrity and in­de­pen­dence of states,” the second that the accreditation procedure for t­ hese NGOs be submitted to states concerned “for consideration on a no-­objection basis.” One ­human rights NGO described the “no-­objection” procedure as “severely flawed” b­ ecause it is “arbitrary,” is “ad-­hoc,” and can result in “censorship and po­liti­cally motivated exclusion of critical voices” (International Ser­vice for H ­ uman Rights 2013). A March 2017 resolution proposed a forum on the role of parliaments in advancing h ­ uman rights, democracy, and the rule of law (UNHRC 2017f). China, Pakistan, and Rus­sia unsuccessfully challenged the resolution with a proposal to

48 • Eduard Jordaan

limit NGO participation to organ­izations that respected state “sovereignty and territorial integrity” (UNHRC 2017g). In the case of the resolutions on ­human rights, democracy, and the rule of law, t­ here is relatively l­ ittle to go on. What is apparent is that from 2015 to 2017 ­there was an increase in the number of African states that favored limiting civil society voices. What is not reflected in figure 3.2, however, is that in 2015 nine out of thirteen African states supported the resolution and that in 2017 and 2019 the resolution did not even go to a vote. The HRC ­adopted its first resolution on civil society space in 2013. Further resolutions followed in 2014, 2016, and 2018. The civil society space resolutions affirm the impor­tant ­human rights role of civil society organ­izations, express concern at their persecution, and demand that states should guarantee a safe environment for ­these organ­izations. Although only the 2016 resolution was voted on, all of the aforementioned resolutions w ­ ere subject to vari­ous hostile, but unsuccessful, amendment proposals. One proposed amendment, for instance, wanted to insert the adjective “responsible” in front of the “civil society” (UNHRC 2016b) to imply that restrictions of “irresponsible” civil society organ­izations—­ “irresponsibility was not defined—­were permissible. In the case of the civil society space resolutions t­ here are four sets of amendment votes to analyze. The pattern is one of steadily declining support for the resolution from 2013 to 2018. While abstentions on ­these amendment votes gradually increased, the number of African states willing to oppose hostile amendments slowly declined. For instance, in 2014, a minimum of five African states opposed the hostile amendments, whereas in the case of three amendment votes in 2018, the strongest opposition came when three African states voted against one of the amendments. Following a panel discussion on the right to peaceful protest, in September 2011, the HRC a­ dopted, in March 2012, a resolution titled “The Promotion and Protection of ­Human Rights in the Context of Peaceful Protests” (UNHRC 2012c). A synonymous resolution followed in 2013. Unlike its pre­de­ces­sors, the 2014 resolution encountered considerable re­sis­tance. South Africa, speaking for allies like China and Rus­sia, tabled four unfriendly amendments, including the demand that “protests should not constitute a threat to national security and the stability of the state” (UNHRC 2014c) and the reminder to protest leaders “that they have duties and responsibilities with regard to the proper conduct of ­those participating in protests” (UNHRC 2014d). Both of t­ hese amendments deflected from the responsibilities of states to protect the rights of individual protesters (­Human Rights Watch 2014). The 2016 and 2018 iterations of this resolution also faced attempts at amendment, with the single 2018 amendment proposal urging “states to ensure that organisers and leaders of protests are cognisant that they have duties and responsibilities with regard to the proper conduct of ­those participating in the protests or­ga­nized u­ nder their auspices” (UNHRC 2018a). Unlike the 2014 and 2016 resolutions, the 2018 resolution was a­ dopted without a vote.

­After Obam • 49

The amendment votes on the peaceful protest resolution have not moved in a clear direction. ­A fter much support for illiberal positions in 2014, much of this dissipated in 2016. In 2018, however, the African Group was back at around its 2014 level, with only two African states opposing the hostile amendment. Moreover, the votes on the three resolutions seem unrelated to the amendment votes. African support for the 2014 and 2016 resolutions are almost identical, while in the 2018 the resolution had enough support to pass without the need for a vote.

Discussion The African Group was part of a liberal shift on the HRC that began to manifest itself in late 2010. American influence was decisive for this re­orientation. Significantly, as discussed in the introduction to this chapter, many of the reasons for this liberal redirection w ­ ere par­tic­u­lar to Obama and his administration. In light of the fact that the Trump administration in many ways exhibited be­hav­ ior opposite to what had helped the United States ­under Obama to pull African and other states on the HRC along in a more human-­rights-­friendly direction—­ the Trump administration was hostile to h ­ uman rights and multilateralism, disrespectful of African countries (Gambino 2018), unilateralist and threatening (Beaumont 2017), and diplomatically bumbling (Gramer 2019) and caused a precipitous decline in the United States’ reputation around world (Tisdall 2019)—­this chapter examined w ­ hether the African Group’s support for po­liti­ cal rights and country-­specific resolutions declined in the Trump era. Figure 3.1 shows that a significant decline in African support for country-­ specific resolutions began in about 2014. Comparing the Obama and Trump eras, however, shows no clear difference in African positions on country-­specific situations. On Syria and Belarus, the African Group in 2019 is approximately where it was in 2016. African support for the EU’s Burundi resolution declined, but African support for the Iran resolution increased. However, t­ here has been a clear, overall decline in African support for po­liti­cal rights, with significant drops in African support for three out of the four po­liti­cal rights resolutions discussed above. Based on the eight sets of resolutions discussed above, it would appear that despite contradictory evidence, the general picture is one of slightly declining African support for international h ­ uman rights since Trump became president. The above findings provide weak evidence that ­there was a decline of ­human rights u­ nder Trump. However, two further batches of evidence make the state of ­human rights at the HRC in the Trump era—­although still not the African Group’s rec­ord—­look quite rosy. The first further set of evidence is the be­hav­ior of non-­A frican members of the HRC. Figures 3.3 and 3.4 trace the votes of the rest of the HRC on the same eight sets of resolutions discussed above. Figure 3.3 shows that while the three longer-­running country resolutions (Belarus, Iran, Syria) began to lose support

50 • Eduard Jordaan

FIG. 3.3   Rest of HRC voting on country situations, 2011–2019

FIG. 3.4   Rest of HRC voting on amendments to po­liti­cal rights resolutions, 2013–2019

at around 2014 and that ­earlier levels have not been regained, support for ­these resolutions increased in the Trump era. The more recent country resolution, on Burundi, has also gained support. In the case of po­liti­cal rights (figure 3.4), the trends are also positive for h ­ uman rights. The direction of amendment votes on the ­human rights defenders and civil society space resolutions is positive for ­human rights, while support for the peaceful protest resolution was steady across the Obama and Trump presidencies. While figure 3.4 shows increased anti-­human-­rights voting on the amendments to the “­human rights, democracy and the rule of law” resolutions, it should be noted that in 2019 much of the opposition to this resolution had dissipated and the text was ­adopted without a vote and without attempts at hostile amendments. This chapter focused on country-­specific and po­liti­cal rights resolutions and amendments that w ­ ere voted on during both the Obama and Trump presidencies. This requirement excludes a number of significant recent developments related to country-­specific resolutions. Taking t­ hese into account w ­ ill not make

­After Obam • 51

the African Group’s rec­ord look better but provides a second batch of evidence of a strengthening of h ­ uman rights at the HRC in recent years. The actions of the rest of the HRC show the African Group’s commitment to h ­ uman rights while at the same time, astonishingly, demonstrating that the rest of the HRC strengthened their commitment to liberal h ­ uman rights in the Trump era. Recall the discussion in the introductory section of how difficult it had been during the HRC’s early years to pass some country-­specific resolutions, not to mention adopting resolutions on new country situations. It is therefore remarkable and very encouraging for ­human rights that in 2018 the HRC for the first time ­adopted a resolution on Venezuela (UNHRC 2018b) and in 2019 resolutions on Nicaragua and the Philippines (UNHRC 2019a, 2019b). In all three cases, the HRC requested “a comprehensive written report” on h ­ uman rights in ­these countries. Indeed, in 2019 the HRC strengthened the Venezuela resolution by creating an international fact-­finding mission “to investigate extrajudicial executions, enforced disappearances, arbitrary detentions and torture and other cruel, inhumane or degrading treatment since 2014 with a view to ensuring full accountability for perpetrators and justice for victims” (UNHRC 2019c). Although none of the aforementioned resolutions had the support of an absolute majority of HRC members, all had the backing of a majority of the members of the Latin American and Ca­rib­bean Group. Other than Rwanda’s vote for the 2018 resolution on Venezuela, t­ hese resolutions received no African votes. Another positive recent development in the HRC has been the resolutions on the civil war on Yemen. The Yemeni Civil War began in 2015, but in 2015 and 2016 the HRC could pass only weak resolutions to provide “technical assistance” to Yemen. In 2017, however, the Netherlands overcame vari­ous geopo­liti­cal and material interests, as well as the presence of Saudi Arabia as an HRC member at the time, to lead the HRC to adopt a resolution that established an international eminent persons group “to establish the facts and circumstances surrounding the alleged violations and abuses and, where pos­si­ble, to identify t­ hose responsible.” The 2017 resolution passed without a vote, but in 2018 and 2019 Saudi Arabia called for a vote. The two latter resolutions did not have the support of an absolute majority of HRC members, and negligible support from African states. In 2018 and 2019, the Yemen resolutions received only one African vote (from Côte d’Ivoire in 2018 and South Africa in 2019), while in 2019 five African states voted against the resolution. Fi­nally, t­ here is the HRC’s response, led by the OIC, to the persecution of the Rohingya. Initially, the HRC addressed the plight of the Rohingya p­ eople through annual resolutions on, and the reports of, the Special Rapporteur on ­human rights in Myanmar (UNHRC 2015c). In June 2015, however, the OIC sponsored a consensually ­adopted resolution asking the UN High Commissioner for ­Human Rights to focus its reporting on the violations against the Rohingya

52 • Eduard Jordaan

and other minority groups (UNHRC 2015d). The High Commissioner reported a situation of “utmost concern” (UNHRC 2016c, 15), but also noted that Myanmar was in the midst of a po­liti­cal transition, which presented the government with “a unique opportunity to create positive momentum by taking crucial steps to halt discrimination against minorities in law and in practice” (UNHRC 2016c, 4). However, the vio­lence against the Rohingya continued. In March 2017, the HRC de­cided to send a fact-­fi nding mission to Myanmar “with a view to ensuring full accountability for perpetrators and justice for victims” (UNHRC 2017i). Amid unrelenting persecution of the Rohingya, in December 2017, the HRC convened a special session. The resultant resolution asked the High Commissioner to report on the Rohingya’s situation and, importantly, to monitor Myanmar’s cooperation with vari­ous UN investigations (UNHRC 2017j). Unlike the March 2017 resolution, this resolution went to a vote. In 2018, the HRC ­adopted two further resolutions on Myanmar, the second of which extended the mandate of the fact-­finding mission and created an “in­de­pen­dent mechanism to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international . . . ​and to prepare files in order to facilitate and expedite fair and in­de­pen­dent criminal proceedings . . . ​ in national, regional or international courts or tribunals” (UNHRC 2018c). In 2019, two more resolutions on Myanmar followed. The first renewed the mandate of the Special Rapporteur and repeatedly referenced the work of the in­de­pen­dent international fact-­finding mission (UNHRC 2019d), while the second transferred the reports of the fact-­finding mission to the General Assembly (UNHRC 2019e). The HRC has ­adopted the Rohingya resolutions with large and increasing majorities. In parallel, African support for ­these resolutions have been firm and growing. In 2019, no African states voted against the year’s two Myanmar resolutions, while ten voted to transfer the fact-­finding mission’s report to the General Assembly.

Conclusion This chapter showed that despite some inconsistent evidence, the general picture is of a slight decline in the African Group’s support for h ­ uman rights during the Trump presidency. However, the rest of the HRC has more than made up for the African Group’s wilting. In fact, the HRC has in recent years continued to move in a liberal, human-­rights-­friendly direction. Counterintuitive as it may seem, considering the rise of authoritarianism and right-­wing pop­u­lism and the generally fraught h ­ uman rights situation around the world, the findings of this chapter suggest that talk of the decline of ­human rights is—as far as recent events on the HRC are concerned—­overblown. A further conclusion pre­sents itself. Scholars have frequently tied the well-­being of the international h ­ uman rights system to American power and

­After Obam • 53

leadership (e.g., Hopgood 2013). Events during the first de­cade of the HRC stand as testament to this link. With the Bush administration on the sidelines and the EU unable to provide leadership, the HRC performed as poorly as its ill-­famed pre­de­ces­sor. When the United States joined the HRC shortly ­a fter Obama became president, the HRC began to move in a liberal and pro-­human-­ rights direction. Such dependence on the United States would therefore lead us to expect that a United States hostile to the HRC—­and l­ater absent from it—­ should result in a deterioration in HRC outcomes. However, as the previous section suggested, this has not happened. Rather, the HRC has continued on a liberal trajectory despite American hostility and China’s increasingly aggressive and nefarious actions (­Human Rights Watch 2017) on the HRC. In short, international h ­ uman rights are more resilient than many have presumed. In closing, a word on one of the themes in this collection: the legitimacy of ­human rights international organ­izations. The legitimacy of the HRC has been and w ­ ill remain fraught. At the heart of the prob­lem is membership. The ability of all UN member states, regardless of their domestic h ­ uman rights rec­ord, to be elected to membership of the HRC has been a source of criticism from the beginning—­human rights abusers should not participate in ­human rights decisions at the world’s premier ­human rights body, the argument goes. At the same time, the relative openness and representativeness of the HRC gives it legitimacy—­the decisions of an institution l­ imited to t­ hose with good domestic rights rec­ords would quickly be painted as the West and its lackeys imposing its views on the rest, thereby delegitimizing the HRC.4 The membership issue is unlikely to be resolved. Reforming the HRC’s membership criteria would be a very delicate pro­cess and, from a ­human rights perspective, might end up making t­ hings worse. The election of rights-­abusing regimes to HRC membership was a reason for the United States’ withdrawal from the HRC in 2018. Shortly before the U.S. departure, Nikki Haley, U.S. ambassador to the UN at the time, tried to reopen the membership issue. She was warned, however, that renegotiating the institutional rules of the HRC might result in states like Rus­sia and China hijacking the institutional reform negotiations and the HRC ending up with worse rules. Th ­ ere have been efforts such as having would-be members make pledges about their commitment to h ­ uman rights or encouraging more competition for HRC seats, but such strategies do not always work. For now, the best hope to increase the legitimacy of the HRC is to build issue-­based cross-­regional coalitions—as has been happening in recent years—­that can command a majority of votes in the HRC. To do this would be to follow the advice of the liberal international relations theorist John Ikenberry. For him, a post-­American world requires the construction of “a new kind of liberal international order,” one that is “more inclusive, less hierarchical, and infused with more complex forms of cooperation” (Ikenberry 2011, p. xiii).

54 • Eduard Jordaan

Notes 1 During 2019, Rwanda and Togo always voted in f­ avor while Burkina Faso and Somalia each once voted for the resolution. 2 In 2012, Benin, Botswana, Burkina Faso, Congo, and Mauritius voted for the resolution. In 2013, it was Benin, Botswana, Burkina Faso, Congo, and Gabon. 3 In 2012, Benin, Botswana, Mauritania, and Senegal voted in f­ avor of the resolution, while Angola, Burkina Faso, Cameroon, Congo, Djibouti, Libya, Mauritius, Nigeria, and Uganda abstained. In 2013, Botswana, Gabon, Libya, and Sierra Leone voted in ­favor, while Angola, Benin, Burkina Faso, Congo, Côte d’Ivoire, Ethiopia, ­Kenya, Mauritania, and Uganda abstained. 4 For some of the difficulties related to stipulating membership criteria, see Kälin and Jimenez (2003).

References Algeria. 2006. “Statement to the HRC.” November 28. https://­w ww​.­un​.­org​/­webcast​ /­unhrc​/­archive​.­asp​?­go​=­061128. Beaumont, P. 2017. “US W ­ ill ‘Take Names of ­Those Who Vote to Reject Jerusalem Recognition.’ ” Guardian, December 20. https://­w ww​.­theguardian​.­com​/­us​-­news​ /­2017​/­dec​/­20​/­us​-­take​-­names​-­united​-­nations​-­vote​-­to​-­reject​-­jerusalem​-­recognition. Burundi. 2017. “Statement to the HRC.” September 19. http://­webtv​.­un​.­org​/­search​/­id​ -­commission​-­of​-­inquiry​-­on​-­burundi​-­contd​-­17th​-­meeting​-­36th​-­regular​-­session​ -­human​-­rights​-­council​-­​/­5580223558001​/­​?­term​=­burundi&sort​=­date&page​=­12#. Canada. 2008. “Statement to the HRC.” March 28. http://­w ww​.­un​.­org​/­webcast​/­HRC​ /­archive​.­asp​?­go​=­080328. Gambino, L. 2018. “Trump Pans Immigration Proposal as Bringing ­People from ‘Shithole Countries.’ ” Guardian, January 12. https://­w ww​.­theguardian​.­com​/­us​-­news​ /­2018​/­jan​/­11​/­trump​-­pans​-­immigration​-­proposal​-­as​-­bringing​-­people​-­from​-­shithole​ -­countries. Gramer, R. 2019. “A Rocky Year for US Diplomacy.” Foreign Policy, December 25. https://­foreignpolicy​.­com​/­2019​/­12​/­25​/­rocky​-­year​-­us​-­diplomacy​-­trump​-­ukraine​ -­pompeo​-­russia​-­china​/­. Hopgood, S. 2013. The Endtimes of ­Human Rights. Ithaca, NY: Cornell University Press. ­Human Rights First. 2013. “A Look Back: Eileen Donahoe Reflects on Her Five-­Year Term.” December 11. https://­w ww​.­youtube​.­com​/­watch​? ­v​=­​-­q1XieYM1kY. ­Human Rights Watch. 2014. “Open Letter to Member States of the UN H ­ uman Rights Council.” March 26. http://­w ww​.­ishr​.­ch​/­sites​/­default​/­fi les​/­article​/­fi les​/­140326​ _­letter​_­council​_­25​_ ­protest​_­oppose​_ ­amendments​.­pdf. —­—­—. 2017. “The Costs of International Advocacy: China’s Interference in United Nations ­Human Rights Mechanisms.” September 5. https://­w ww​.­hrw​.­org​/­report​ /­2017​/­09​/­05​/­costs​-­international​-­advocacy​/­chinas​-­interference​-­united​-­nations​ -­human​-­rights. Ikenberry, G. J. 2008. “The Rise of China and the F ­ uture of the West: Can the Liberal System Survive?” Foreign Affairs 87 (1): 23–37. —­—­—. 2011. Liberal Leviathan: The Origins, Crisis, and Transformation of American World Order. Prince­ton, NJ: Prince­ton University Press. International Ser­vice for ­Human Rights. 2013. “States Should Reject Procedure That Results in Exclusion of NGOs from UN.” February 1. http://­w ww​.­ishr​.­ch​/­news​ /­states​-­should​-­reject​-­procedure​-­results​-­exclusion​-­non​-­government​-­organisations​-­un.

­After Obam • 55

Jordaan, E. 2016. “The African Group on the UN ­Human Rights Council: Shifting Geopolitics and the Liberal International Order.” African Affairs 115 (460): 490–515. Kälin, W., and C. Jimenez. 2003. “Reform of the UN Commission on H ­ uman Rights: Study Commissioned by the Swiss Ministry of Foreign Affairs.” University of Bern, Institute of Public Law. Piccone, T. 2017. “Assessing the United Nations H ­ uman Rights Council.” Brookings Institution, May 25. https://­w ww​.­brookings​.­edu​/­testimonies​/­assessing​-­the​-­united​ -­nations​-­human​-­rights​-­council​/­. Ramcharan, R. 2011. The UN ­Human Rights Council. New York: Routledge. Regilme, S. S. 2019. “The Decline of American Power and Donald Trump: Reflections on ­Human Rights, Neoliberalism, and the World Order.” Geoforum 102:157–166. Revesz, R. 2017. “Rex Tillerson Threatens to Withdraw from UN H ­ uman Rights Council to Improve H ­ uman Rights.” In­de­pen­dent, March 15. https://­w ww​.­indepen​ dent​.­co​.­uk​/­news​/­world​/­americas​/­rex​-­tillerson​-­un​-­human​-­rights​-­council​-­us​-­secretary​ -­state​-­china​-­saudi​-­arabia​-­egypt​-­a7630531​.­html. Smith, K. 2010. “The Eu­ro­pean Union at the H ­ uman Rights Council: Speaking with One Voice but Having ­Little Influence.” Journal of Eu­ro­pean Public Policy 17 (2): 224–241. Tisdall, S. 2019. “Donald Trump Has Dragged Amer­i­ca’s Global Reputation to an All-­Time Low.” Guardian, November 19. https://­w ww​.­theguardian​.­com​ /­commentisfree​/­2019​/­nov​/­19​/­donald​-­trump​-­america​-­g lobal​-­reputation​-­a ll​-­time​ -­low. UNHRC. 2008. “Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression” (UN Doc. A/HRC/7/L.24). March 25. —­—­—. 2011a. “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Vio­lence and Vio­lence Against, Persons Based on Religion or Belief ” (UN Doc. A/HRC/RES/16/18). April 12. —­—­—. 2011b. “Situation of ­human rights in the Syrian Arab Republic” (UN Doc. A/ HRC/RES/S-17/1). August 22. —­—­—. 2011c. “Situation of H ­ uman Rights in Belarus” (UN Doc. A/HRC/RES/17/24). July 14. —­—­—. 2011d. “Situation of ­Human Rights in the Islamic Republic of Iran” (UN Doc. A/HRC/RES/16/9). April 8. —­—­—. 2012a. “Situation of ­Human Rights in Belarus” (UN Doc. A/HRC/ RES/20/13). July 16. —­—­—. 2012b. “­Human Rights, Democracy and the Rule of Law” (UN Doc. A/HRC/ RES/19/36). April 19. —­—­—. 2012c. “The Promotion and Protection of H ­ uman Rights in the Context of Peaceful Protests” (UN Doc. A/HRC/RES/19/35). April 18. —­—­—. 2013a. “Situation of ­Human Rights in the Demo­cratic ­People’s Republic of ­Korea” (UN Doc. A/HRC/RES/22/13). April 9. —­—­—. 2013b. “Outcome of the Panel Discussion on Common Challenges Facing States in Their Efforts to Secure Democracy and the Rule of Law from a ­Human Rights Perspective” (UN Doc. A/HRC/24/54). August 6. —­—­—. 2014a. “Report of the Commission of Inquiry on H ­ uman Rights in the Demo­cratic ­People’s Republic of ­Korea” (UN Doc. A/HRC/25/63). February 7. —­—­—. 2014b. “Amendment to Draft Resolution A/HRC/25/L.24: Mandate of the Special Rapporteur on the Situation of ­Human Rights Defenders” (UN Doc. A/ HRC/25/L.46). March 26.

56 • Eduard Jordaan

—­—­—. 2014c. “Amendment to Draft Resolution L.20: The Promotion and Protection of ­Human Rights in the Context of Peaceful Protests” (UN Doc. A/HRC/25/L.50). March 26. —­—­—. 2014d. “Amendment to Draft Resolution L.20: The Promotion and Protection of ­Human Rights in the Context of Peaceful Protests” (UN Doc. A/HRC/25/L.52). March 26. —­—­—. 2015a. “­Human Rights, Democracy and the Rule of Law” (UN Doc. A/HRC/ RES/28​/14). March 26. —­—­—. 2015b. “­Human Rights, Democracy and the Rule of Law” (UN Doc. A/HRC/28​ /L.24). March 23. —­—­—. 2015c. “Situation of H ­ uman Rights in Myanmar” (UN Doc. A/HRC/RES/28​ /23). April 2. —­—­—. 2015d. “Situation of H ­ uman Rights of Rohingya Muslims and Other Minorities in Myanmar” (UN Doc. A/HRC/RES/29/21). July 22. —­—­—. 2016a. “Situation of H ­ uman Rights in Burundi” (UN Doc. A/HRC/RES/33​ /24). October 5. —­—­—. 2016b. “Amendment to Draft Resolution L.29: Civil Society Space” (UN Doc. A/HRC/32/L.55). June 29. —­—­—. 2016c. “Report of the United Nations High Commissioner for H ­ uman Rights on the Situation of ­Human Rights of Rohingya Muslims and Other Minorities in Myanmar” (UN Doc. A/HRC/32/18). June 28. —­—­—. 2017a. “Report of the Special Rapporteur on the Situation of ­Human Rights in the Islamic Republic of Iran” (UN Doc. A/HRC/34/65). March 17. —­—­—. 2017b. “Report of the Commission of Inquiry on Burundi” (UN Doc. A/ HRC/36/54). August 11. —­—­—. 2017c. “Renewal of the Mandate of the Commission of Inquiry on Burundi” (UN Doc. A/HRC/RES/36/19). October 4. —­—­—. 2017d. “Mission by the Office of the United Nations High Commissioner for ­Human Rights to Improve the H ­ uman Rights Situation and Accountability in Burundi” (UN Doc. A/HRC/RES/36/2). October 4. —­—­—. 2017e. “ ‘Mandate of the Special Rapporteur on the Situation of ­Human Rights Defenders” (UN Doc. A/HRC/34/L.5). March 17. —­—­—. 2017f. “­Human Rights, Democracy and the Rule of Law” (UN Doc. A/HRC/34​ /L.20). March 20. —­—­—. 2017g. “Amendment to Draft Resolution A/HRC/34/L.20: ­Human Rights, Democracy and the Rule of Law” (UN Doc. A/HRC/34/L.52). March 22. —­—­—. 2017h. “­Human Rights, Technical Assistance and Capacity-­Building in Yemen” (UN Doc. A/HRC/RES/36/31). October 3. —­—­—. 2017i. “Situation of ­Human Rights in Myanmar” (UN Doc. A/HRC/RES/34​ /22). April 3. —­—­—. 2017j. “Situation of ­Human Rights of Rohingya Muslims and Other Minorities in Myanmar” (UN Doc. A/HRC/RES/S-27/1). December 8. —­—­—. 2018a. “Amendment to Draft Resolution A/HRC/38/L.16: The Promotion and Protection of ­Human Rights in the Context of Peaceful Protests” (UN Doc. A/ HRC/38​/L.26). July 4. —­—­—. 2018b. “Promotion and Protection of H ­ uman Rights in the Bolivarian Republic of Venezuela” (UN Doc. A/HRC/RES/39/1). October 3. —­—­—. 2018c. “Situation of H ­ uman Rights of Rohingya Muslims and Other Minorities in Myanmar” (UN Doc. A/HRC/RES/39/2). October 3.

­After Obam • 57

—­—­—. 2019a. “Promotion and Protection of ­Human Rights in Nicaragua” (UN Doc. A/HRC/RES/40/2). April 4. —­—­—. 2019b. “Promotion and Protection of H ­ uman Rights in the Philippines” (UN Doc. A/HRC/RES/41/2). July 17. —­—­—. 2019c. “ ‘Situation of H ­ uman Rights in the Bolivarian Republic of Venezuela” (UN Doc. A/HRC/RES/42/25). October 8. —­—­—. 2019d. “Situation of H ­ uman Rights in Myanmar” (UN Doc. A/HRC/RES/40​ /29). April 11. —­—­—. 2019e. “Situation of H ­ uman Rights of Rohingya Muslims and Other Minorities in Myanmar” (UN Doc. A/HRC/RES/42/3). October 3.

Part 3

Thematic Blind Spots in International ­Human Rights

4

Consensus and ­Human Rights Politics The Case of ASEAN Intergovernmental Commission on ­Human Rights IRENE HADIPRAYITNO AND DINNA PRAPTO RAHARJA ASEAN was a product of diplomatic consensus among initially five countries of South East Asia that wished to create peace and stability in the region while averting foreign intervention. Over the years the cooperation broadened in membership and scope. Entering the twenty-­first ­century, ASEAN not only embarked on cementing a rule-­based order among the member states by adopting the ASEAN Charter, but also opened a new dimension of attention: h ­ uman rights, by establishing the ASEAN Intergovernmental Commission on H ­ uman Rights (AICHR) in 2009. Nevertheless, skepticism about h ­ uman rights practices in ASEAN lingers. The idea of formulating regional consensus through a h ­ uman rights body has been seen as beyond what member states would tolerate. Some said that ASEAN community is not supported by a strong ASEAN identity thus dilemma for balancing sovereignty with the gains when supporting ASEAN would remain (Narine 2009) and ASEAN would continue with its internal challenge to reach meaningful 61

62 • Irene Hadiprayitno and Dinna Prapto Raharja

consensus (Jones 2010a). Article 20 (1) of the ASEAN Charter reads, “As a basic princi­ple, decision-­making in ASEAN ­shall be based on consultation and consensus.” Such an institutional feature only confirms the expectation that consensus is a prob­lem for ASEAN and its effort to work meaningfully in ­human rights. Adhering to the princi­ple of consensus is the obvious way for individuals to remain ­free while being subject to collective decisions, for then t­ hose decisions embody only the desires of ­free ­people. To many con­temporary po­liti­cal theorists, consensus remains the gold standard of po­liti­cal justification, and this is especially true for deliberative demo­crats (Steffek 2007). Most international ­lawyers hold the view that the obligation of states to comply with international ­legal rules is grounded in their explicit consent (Steffek 2003). All international agreements and treaties that are in force should be observed in good faith. Such a minimalist version of the view that international norms use an in­de­pen­dent compliance pull upon actors rests on the fact that all global governance institutions emerge from diplomatic negotiations. Po­liti­cal arrangements that resulted from a collective decision of actors to participate in a deliberation about the content would have the legitimacy from all the parties involved in the negotiation. In other words, states that have agreed to their creation have consented to their norms and therefore should feel an obligation ­toward them. Moreover, consensus and explicit consent also represent a shared view on princi­ ples and values without which no regional cooperation would be able to take place in Southeast Asia or anywhere e­ lse for that m ­ atter. While a consensus-­based decision-­making pro­cess is hardly controversial, it has long been attached to any criticisms about ASEAN, particularly concerning h ­ uman rights. But, what would it mean to come to a genuine, involuntary transnational consensus on ­human rights, where dif­fer­ent communities, countries, and religious groups, while holding diverse fundamental views on spiritualism, territorial security, economic interests, h ­ uman nature, and so forth, come to an agreement on certain norms that ­ought to govern ­human be­hav­ior? Would this kind of consensus pos­si­ble? And if so, what are the implications of such a consensus for the promotion and protection of t­ hose norms? This chapter responds to the question of the blind spots in the research on the institutionalization of ­human rights at the regional level. Studies on this topic often center around the competency of an existing h ­ uman rights body, that is, to what extent ­legal and po­liti­cal actors in such a body can set up goals to fulfill their ­human rights duties and are capable of achieving ­those goals in their interactions. Often, it is expected that ­these roles include monitoring the realization of rights in the member states, intervening in the case of violations, and demanding the states to issue compensations and reparations. Based on this expectation, AICHR falls short. But using this lens to examine all regional ­human rights bodies is, in our view, inadequate to deliver a useful analy­sis that enables one to understand regional h ­ uman rights politics completely. One should remember

Consensus and ­Human Rights Politics • 63

that ­human rights across the world are not a norm that is broadly accepted on a uniform basis over a sustainable period of time and are realized consistently. Even the supposedly more liberal Western countries are ambivalent to ­human rights when it comes to the inflow of mi­grants and refugees or freedom of expression in their own land or abroad in Yemen, Palestine, even Myanmar (Wisnu 2018a, 2018b). Other po­liti­cal priorities often cloud the national agenda and regional agenda. Hence, ASEAN is not extraordinary in having a similar challenge. In this light, discussing the issue of h ­ uman rights in Southeast Asia involves understanding what ­human rights consensus actually means to this organ­ization, how consensus is built inside of AICHR, and how it is planned to resonate beyond AICHR. By focusing on t­ hose aspects, we aim to fill the gap in the current knowledge on the institutionalization of ­human rights. In this chapter, we argue that the pro­cess of institutionalization of h ­ uman rights in this region has reached a consensus about what h ­ uman rights mean for ASEAN, which is through the birth of the ASEAN ­Human Rights Declaration along with the Phnom Penh Statement. And such a consensus creates an expectation for the duty to fulfill h ­ uman rights’ needs. What is problematic, however, is that advocates tend to privilege a body that can adopt legalistic agendas that coincide with the dominant global rights discourse and overlook the po­liti­cal complexity of ­human rights practices in ASEAN.

The Status of ­Human Rights in ASEAN By adopting the ASEAN Charter of 2007—­entered into force on December 15, 2008—­the ASEAN officially asserts re­spect for h ­ uman rights and fundamental freedoms as well as the rejection of unconstitutional and undemo­cratic changes of government as one of the goals of the organ­ization. The charter serves as a material basis for the ASEAN H ­ uman Rights Declaration (AHRD), a­ dopted at Phnom Penh, Cambodia, in 2012. The declaration, despite its non–­legally binding status, serves as a core and only l­egal document for understanding the substantive content on h ­ uman rights in ASEAN. The declaration asserts similar provisions embedded in international ­human rights treaties, both civil and po­liti­cal rights as well as economic, social, and cultural rights. Th ­ ese include among o­ thers equality in re­spect of the rights, equality before the law, and right to an effective and enforceable remedy, to be determined by competent authorities “for acts violating the rights granted to that person by the constitution or by law,” as well as right to work, right to highest attainable standard of health, and right to education. In addition to the first-­and second-­generation rights typically promoted in international h ­ uman rights instruments, the declaration sets out third-­generation rights, namely the right to development and the right to peace. Still, some expressions of reluctance remain. The declaration counterbalances individual rights and freedoms with the duties of individuals to larger

64 • Irene Hadiprayitno and Dinna Prapto Raharja

communities and their institutional embodiment in the form of the state. Article 6 of the declaration stipulates: “The enjoyment of ­human rights and fundamental freedoms must be balanced with the per­for­mance of corresponding duties as ­every person has responsibilities to all other individuals, the community and the society where one lives.” Moreover, while the declaration asserts the universality, indivisibility, interde­pen­dency, and interrelatedness of all h ­ uman rights and fundamental freedom, at the same it also mentions the importance of recognizing the particularities and differences that exist at both the regional and the national levels. Article 7 states that “the realization of h ­ uman rights must be considered in the regional and national context bearing in mind dif­fer­ent po­liti­cal, economic, l­egal, social, cultural, historical and religious backgrounds.” Critics are mainly concerned with the vagueness and the lack of specificity found in the broad provisions that exalt ideas about “the avoidance of double standards and politicization,” primarily as the AHRD endorses and replicates the UDHR, yet at the same time its implementation should observe national laws (Davies 2017). In this regard, the draf­ters repeatedly insisted that AHRD is intended to be a “po­liti­cal instrument,” in the sense that for de­cades dif­fer­ent arguments, namely neo­co­lo­nial­ism, collective and f­ amily values, as well as an “economics-­first” argument, have been commonly used in ASEAN to ­counter ­human rights arguments.1 Given that ­human rights have developed into a major issue in international relations ­after the Cold War, nonengagement in the ­human rights debate created a suspicion that the state has something to hide. Moreover, the outbreak of the 1997–1998 Asian financial crisis that brought about transitions to democracy in some member states created a new space for negotiating ­human rights.2 The crisis, which hit the region badly, exposed the vulnerability of the Asian counterview on ­human rights, particularly on economic development. It provided a boost for the proponents of universal ­human rights, as many noted a “modest pro­gress” ­toward the proliferation of h ­ uman rights discourses and democracy, allowing an evaluation of the region’s idea on modern states to deliver economic welfare (Hadiprayitno 2019). Notably, the ac­cep­tance of h ­ uman rights norms in Southeast Asia reflects what the norms mean for the member states, which is a po­liti­cal compromise at transitional times, rather than moral norms to command how a state should interact with its citizens. In short, ASEAN does not enjoy a consensus regarding the norms and their limitations that are associated with the establishment of an effective and functional h ­ uman rights body. But during transitional times such as in the late 1990s, member states could no longer defend ASEAN’s traditional stance to reject ­human rights as the transition to democracy also meant increasing the significance of civil society organ­izations in domestic and regional politics. It is in this context that how ­human rights are practiced in ASEAN should be examined.

Consensus and ­Human Rights Politics • 65

Situating AICHR in the ASEAN Orga­nizational Structure With the Cha-­A m Hua Hin Declaration resulting from the Fifteenth ASEAN Summit in 2009, ASEAN established the ASEAN Intergovernmental Commission on ­Human Rights. The Terms of Reference (ToR) act as the basis for AICHR’s existence. As mentioned e­ arlier, AICHR, known as “the h ­ uman rights body” in ASEAN, consists of ten nominated representatives of each member state who are answerable to states. Some of t­ hese representatives are selected transparently and openly, where civil society activists may nominate themselves as the country representative. ­Others are appointed from the line of most trusted individuals to the national government. ­Under the ToR, AICHR has no in­de­ pen­dent power; for the most part, the body can only disclose details of their negotiations and internal pro­cess to the forum of ASEAN foreign ministers. The body has mandates to, inter alia, promote ­human rights at the regional level by engaging in a dialogue with the member states, academia, and civil society organ­izations, as well as, if required, other national, regional, and international institutions concerned with the promotion of h ­ uman rights. AICHR has no mandate to hear input from the public (at least no mandate explic­itly specifies such task) or to enforce h ­ uman rights conventions. Mandate 4.5 asserts that AICHR’s role is “to encourage ASEAN member states to consider acceding to and ratifying international h ­ uman rights instruments.” The body is also mandated “to promote the full implementation of ASEAN instruments related to ­human rights” (mandate 4.6) and “to enhance public awareness of ­human rights” (mandate 4.3). Its primary duty is to convene relevant stakeholders to discuss issues, to learn about issues, to act on issues, and to propose capacity building about the issue. Notably, the ToR regulates AICHR mandates merely on the promotion of ­human rights rather than on protection. The “only” aspect of ­human rights protection that AICHR can do is “to obtain information from the ASEAN Member States on the promotion and protection of h ­ uman rights” (mandate 10). It is not hard to find disapproving comments to the above story of ASEAN’s ­human rights institutionalization. Munro is critical of the use of such imprecise language as “develop strategies” and “enhance public awareness” to express AICHR’s functions (Munro 2011). Similarly, Kraft has a prob­lem with the ToR of the AICHR, which in his view weakens the AICHR due to the noninterventionist stance to which it is tied (Kraft 2012). Ginbar contends that ASEAN’s approach to observing consensus as an approach in ­human rights would mean that “each state would be able to reject any criticism of its own ­human rights rec­ ord by veto, which could lead ­either to paralysis or to the adoption of weak positions based on the lowest common denominator” (Ginbar 2010). Moreover, the ToR also consists of apparent contradictions, such as declaring that persons appointed to the AICHR “­shall act impartially,”3 while si­mul­ta­neously making them “accountable to the appointing government.”4 This double role usually

66 • Irene Hadiprayitno and Dinna Prapto Raharja

means that repre­sen­ta­tions especially from authoritarian countries would prioritize their loyalties to their government first. In this light, Katsumata notes, even though ASEAN appears to be moving in the direction of liberal reforms to its overall structure, the pro­gress of t­ hose reforms has been modest (Katsumata 2009). Another remark on the position AICHR within the ASEAN structure is that it is not the only h ­ uman rights body with h ­ uman rights related mandates. Other bodies that overlap with AICHR are the ASEAN Committee on the Protection and Promotion of the Rights of Mi­g rant Workers (ACMW) and the ASEAN Committee on ­Women (ACW). Some other Se­nior Officials Meetings (SOMs) also touch on issues relevant to AICHR: the Se­nior Official Meeting on Social Welfare Development, Se­nior Official Meeting on Health Development, Se­nior Official Meeting on Education, Se­nior Official Meeting on Youth, Se­nior Officials Meeting Responsible for Information, Se­nior Official Meeting on Transnational Crime. In the structure of the main organs, ­human rights discussions take place within the agenda of the ASEAN Po­liti­cal Security Community. Figure 4.1 illustrates the relationship between ASEAN’s main organs and its current h ­ uman rights bodies/actors. What appears in the structure is that the main organs consist of se­nior official representatives who are responsible for the overall conduct of ASEAN. The SOMs encompass se­nior officials attached to the sectoral ministries. Each community pillar belonging to the Coordinating Community Council is responsible for implementing the ASEAN blueprints and other consensus agreed upon in each ministerial-­level meeting, which is then reported to the coordinating community council. In this light, ASEAN continues to depend on the old state-­ to-­state tradition of ASEAN. Th ­ ese main organs are also the ones authorized for deciding ASEAN policies concerning the orga­nizational operation that affects the member states. The dynamic is slightly dif­fer­ent in the context of h ­ uman rights, where nonstate actors could also officially contribute to the development and the pro­gress of institutionalizing ­human rights in ASEAN. Th ­ ese nonstate actors can contribute through AICHR, by being elected as government representatives, through cooperation with AICHR, or through other ASEAN mechanisms related to ­human rights. As said before, AICHR comprises ten representatives who serve on their individual capacity despite their employment background. One representative for each member state has a mandate of three years. ­Every member state has the freedom to choose their representatives, but the norm has been that they must be trusted by the government. Indeed, not all representatives have expertise in ­human rights. Some are civil servants and retired diplomats assigned for presumed familiarity with carry­ing out negotiations according to intergovernmental princi­ples. ­Others are appointed through an open pro­cess from the civil society groups. Gender and age balances are well represented in AICHR.

Consensus and ­Human Rights Politics • 67

FIG. 4.1   ASEAN Main Organs and H ­ uman Rights Mechanism. Source: Authors.

AICHR is not the only h ­ uman rights body in ASEAN. Nevertheless, one should note that ACMW, ASEAN Commission on the Promotion and Protection of the Rights of ­Women (ACWC), and ACW are institutionally dif­fer­ent. ACMW are all civil servants from the Ministry of Manpower or L ­ abor. ACW is the sectoral body that helped draft the ToR of ACWC; it implements, coordinates, and monitors the implementation of ASEAN’s regional priorities related

68 • Irene Hadiprayitno and Dinna Prapto Raharja

to the Declaration of the Advancement of ­Women in ASEAN, so it comprises se­nior officials. ACMW, ACWC, and ACW are linked directly with the ministries that send them. Thus, they are sectoral intergovernmental bodies relevant to ­human rights, which means bud­gets, programs, and ideas are based on what their ministries plan on. AICHR representatives are comparable to ACWC representatives who serve in their individual capacity. The main difference is that AICHR is a cross-­sectoral intergovernmental body, an overarching h ­ uman rights body in ASEAN with the responsibility to mainstream ­human rights princi­ples and practices to all ASEAN community pillars. Annex 2, consisting of entities connecting to ASEAN, is a response to the recent ambition of ASEAN to become a “people-­oriented” organ­ization.5 Despite this aspiration, however, assessments of civil society organ­izations’ (CSOs) engagement with ASEAN and the ability of CSOs to have a meaningful impact on ASEAN policies are less than favorable (Nesadurai 2009). ­There is a lack of formal consultation channels for CSOs to directly have an impact on the AICHR and AHRD. In spite of t­ hese restrictions, Gomez and Ramcharan note that CSOs have endeavored valiantly to serve the cause of protection of h ­ uman rights by in­de­pen­dently highlighting serious lacuna in the ­human rights regime, notably on the normative aspects of the regime (Gomez and Ramcharan 2012). The real­ity of the in­effec­tive­ness of CSOs in advancing the protection of h ­ uman rights in Southeast Asia leaves room for doubt about the emergence of a strong protection regime in the near ­future. Against the issues of mandates and the orga­nizational structure above, it is clear that AICHR is not designed to be the implementing ­human rights body in ASEAN (Wisnu 2019). In this light, one might need to manage expectations derived from theoretical assumptions and experiences from other regional h ­ uman rights bodies. ­There is a need to look at issues from inside AICHR: First, each country representative has an individual responsibility to bring up issues and design programs that are acceptable to other representatives. Second, AICHR is not an implementing body ­because ASEAN’s se­nior official meetings have the mandate to do so. And third, the majority of AICHR representatives adhere rigidly to the current o­ rders that focus on promoting ­human rights values.

ASEAN Intergovernmental Commission on H ­ uman Rights: Product of a (Failed) Consensus? Consensus is a crucial f­ actor for agreed global norms to have their intended effects. Explicit consent and consensus represent a shared view of t­ hose norms, without which cooperation to implement them w ­ ill not take place. As mentioned before, a consensus on certain norms would compel states an obligation ­toward them. This is far for being a controversial issue in international law or international relations. Nonetheless, in the case of ASEAN, the princi­ple of consensus is disparaged as the reason that ­human rights do not have their effects.

Consensus and ­Human Rights Politics • 69

Understanding this puzzle requires one to understand consensus at substantive and procedural levels in this region. The princi­ple of consensus in ASEAN is part of a set of values commonly known as the ASEAN Way. Regarded as the reason for the success of regional cooperation in Southeast Asia, the ASEAN Way entails behavioral norms encapsulated in the code of conduct and a set of procedural norms (Nischalke 2000). The former contains standard norms of international law: re­spect for sovereignty, noninterference in internal affairs, peaceful resolution of conflict, and non–­use of force. The standard norms bind all member states in ASEAN meetings and decision making that no country may use force, dominance, or unilateralism against other states. What is encouraged h ­ ere is voluntary support from all member states, or at least when one country does not fully support something, it must keep quiet and participate in collective agreement rather than abstaining, let alone rejection of any of the discussed ideas/initiatives. The latter, more unique to ASEAN, prescribes the decision-­making procedures that ASEAN leaders are required to follow. ­There have been cases when the minus-­x formula has been used on economic affairs, which allowed for less than a consensus to happen in ASEAN.6 Scholars have reviewed the strategy of “less-­than-­consensus formula” (Emmers 2017) as a pragmatic choice of member states and therefore argue that ­there is no such t­ hing as “widespread consensus” (Jones 2010a) in ASEAN politics. Unfortunately, this is yet to be the case for h ­ uman rights. Leaders should observe consultation (musyawarah) and consensus (mufakat). The often-­criticized series of multiple meetings in ASEAN is a member’s way to ensure that all ­angles on the issue are deliberated, understood, and consulted with the relevant stakeholders. Only ­after t­ hose consultation series could consensus be made; note that the ASEAN consensus mechanism always goes through consultation series first. Together with inclination to informality and nonconfrontational be­hav­ior, ­these constitute the core of what the princi­ple of consensus means for ASEAN. Of importance h ­ ere is to prevent open disagreement and to adopt a position that accommodates dif­fer­ent views—­not only ­those from more power­ful or more prominent states. Such an approach to regionalism is partly due to diversity within and across the region, in terms of not only societal values but also economic levels and pro­cesses of democ­ratization. As argued by Acharya, the ASEAN Way emerged not only from the princi­ples of interstate relations agreed to by the found­ers of ASEAN but also from a subsequent pro­cess of interaction, socialization, compromise, and adjustment, which have been considered vital to prevent and control conflicts in the region (Acharya 1998). Notably, t­ here is g­ reat religious diversity among the ten ASEAN member states. In Southeast Asia, the world’s main religions—­Hinduism, Buddhism, Confucianism, Islam, and Chris­tian­ity (including Roman Catholicism)—­exist alongside native religions, which tend to be animistic. Within the region itself, ­there are religious concentrations to be found. Islam is the majority religion in

70 • Irene Hadiprayitno and Dinna Prapto Raharja

Malaysia, Brunei, and Indonesia, that is, in the southern part of Southeast Asia, whereas Buddhism dominates in the northern region, that is, in Thailand, Myanmar, Cambodia, and Lao PDR. In the eastern part, the Philippines is the only ASEAN country with a Christian majority, most of whom are Roman Catholics. Such diversity has consequences on state-­religion arrangements across the region, which means that t­ here are differing views on the po­liti­cal, social, and ­legal order, especially concerning a regional mechanism regarding how social and po­liti­cal life should be guaranteed. Second, ­there is also a “development gap” or a division between its older and newer members regarding the levels of in­equality, poverty, and socioeconomic development. As an example, a differential economic per­for­mance exists between the older members of ASEAN (namely Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore, and Thailand). Among its newer members (Cambodia, Laos, Myanmar, and Vietnam), ­there are dissimilarities between economic policies, governance, and institutional quality, as well as in­equality and the ­human development index. This situation creates not only a dif­fer­ent expectation on what member states expect from ASEAN but also vari­ous concerns about the costs and benefits for what h ­ uman rights implementations mean for each country. Third, po­liti­cal currents in the past two de­cades in the states of Southeast Asia are also resulting in variety in the degree of regime transformations, as they have not all been in step with the global march t­ oward democracy. By the mid-1990s, vari­ous forms of nondemocracy existed in the region. In the late 1990s, Indonesia, the Philippines, and Thailand became democracies. Demo­cratically elected governments cannot ignore the voices of their constituencies and consequently promote liberal values at the regional level. Nevertheless, the financial crisis did not spark such dramatic changes elsewhere in the region. Many governments in the region continue to face debilitating challenges, including po­liti­cal polarization, elite infighting, partisan gridlock, and corruption scandals. Recent developments show that demo­cratic transitions, coupled with global economic uncertainty, have unintentionally assisted the transnational ambition of a radical Islamism that challenges the state-­based regional order (Jones 2008). Against the foregoing, decisions made in consensus usually take a long time and are uncertain. ASEAN also considers the need and situation of ­every member state. Given the variety of po­liti­cal systems and ideologies within ASEAN, the organ­ization can only achieve a consensus only concerning ­human rights as a po­liti­cal strategy rather than integrating them as part of their governing norms regionally and eventually nationally. As an idea, the promotion of liberal norms through regional organ­izations requires the member states to be democracies themselves and agreement on the main ideological pillars of demo­cratic government. Moreover, in the context where a variety of cultures, po­liti­cal systems, economic interests, and security perceptions is an unavoidable fact, concentration on the h ­ uman rights system may not be preferred. For instance,

Consensus and ­Human Rights Politics • 71

a concentration of power to protect ­human rights at the regional level may be more likely to be acceptable for countries where ­there are fewer contestations about the substantive meaning of h ­ uman rights. One of the reasons for this is that it may help them in delegating the costs for implementing rights. In another real­ity, such a concentration may be less desirable as governments have dif­fer­ent interests in a regional mechanism. As a result, AICHR is never intended to have a competency to intervene. Its functional roles are merely as a reminder and a convener for h ­ uman rights issues to be discussed. The AICHR Forum on Access to Justice in Bangkok, Thailand, December 17 to 18, 2018, provides an example. The forum served as a platform to launch and pre­sent key findings and recommendations of the AICHR thematic study on ­legal aid and to hold a regional consultation for two thematic studies also on justice and h ­ uman rights in ASEAN, namely, the right to life and juvenile justice. Another instance is AICHR Consultation on the Implementation of Article 22 of the AHRD on Freedom of Religion and Belief, held in Nusa Dua, Indonesia, December 11 to 13, 2019. Similar to the forum before, the consultation aimed to provide a platform for ASEAN stakeholders to share practices and experiences on the implementation of freedom of religion and belief in ASEAN and to promote a better understanding of the m ­ atter. One can observe other AICHR’s events with equivalents goals. Dialogues, consultation meetings, and forums indeed provide a space for sharing experiences, but no concrete po­liti­cal outcome can be expected. The focus is to or­ga­nize activities to inspire rather than to change be­hav­ior or policies. Discussions are maintained at a level where AICHR representatives communicate their initiatives. However, it is diplomatically unwise to promote t­ hese initiatives to a higher level of policymaking involving se­nior officials. Agendas are also varied depending on the priorities of representatives and, for some countries, in par­tic­u­lar on the policy agenda of the governments they represent. If an activity is hosted by AICHR, ­there is less likelihood that the SOM would take up the result as its priority follow-up, even when the activities are attended by SOM representatives. In many cases, programs and the rights that are being put forward during consultative meetings also are contingent upon the ASEAN orientation at the given moment, which fluctuates as values given to ­human rights interact with the global and regional narratives as well. Moreover, keeping a ToR where AICHR representatives serve in their individual capacity also suggests that the member states are not interested in developing programs that last beyond a batch of representatives, as e­ very three years t­ here ­will be a renegotiation of terms and activities. Such a circumstance describes a progressive way of pushing for h ­ uman rights norms to be known and then understood as necessity. ­A fter all, past studies have suggested that when engaging states on ­human rights, states are no longer monolithic entities; their reputation and responses to public outcry differ according to who h ­ andles what (Regilme 2019).

72 • Irene Hadiprayitno and Dinna Prapto Raharja

Furthermore, in an organ­ization where noninterference is key, the representatives with a closer link with the ruling regime (­either as active civil servants or former civil servants) have stronger legitimacy to defend the country’s position in a negotiation. When they speak, ­others assume that the state speaks through them. Psychologically they too have no moral burden to be quiet amid a ­human rights catastrophe or persuasion from ­others. “State-­linked representatives” do not have direct constituents to engage or to please. If the capacity as a representative is understood as the ability to persuade and act on h ­ uman rights violations, ­those representatives “unlinked to a state” ­will qualify ­because they are the ones getting attention from the public, who needs to remain agile to alert, remind, and persuade the “state-­linked representatives.” Indeed, the challenge is not personal capacity but the basis of negotiation, which itself remains state-­centric. What this means to our understanding of consensus at a procedural level in ASEAN is twofold. First, ASEAN can achieve agreement on ­human rights only by rejecting positive l­ egal dimensions. A negotiation model such as this is highly problematic. In order to enhance the legitimacy of the institution responsible for the implementation of ­those norms, consensus should be sufficiently persuasive and procedurally clear. In this regard, the ASEAN ­human rights mechanism is characterized not so much by consensus as such but instead by carefully governed disagreements, both among members and between members and the regional commitments they have created. Voluntary compliance with international norms and regimes is of par­tic­u­lar interest to ­those who see internationalism as a peaceful pro­cess of pluralism and socialization, in contrast to ­those who seek compliance by making disobedience too costly an option for recalcitrant states. Second, to achieve consensus on h ­ uman rights, pragmatic and flexible approaches are a­ dopted. Of par­tic­u­lar importance h ­ ere is to find narratives and strategies that prevent conflicting realities between rights and sovereignty. Moreover, leaders have been trained to set up their own communitarian agendas and positions during ASEAN meetings on ­human rights issues. Many commentators have argued that ASEAN leaders are also reluctant to change their approach to ­human rights by following legal-­positivist standards associated with the Western approach to h ­ uman rights. The ASEAN mutual understanding of h ­ uman rights remains the same: they do not reject the universal princi­ples of ­human rights. Instead, it is the application that m ­ atters much and needs to fit local ASEAN conditions. The interplay between the two makes it difficult to mold ­human rights discussion in ASEAN. The foregoing discussion on the institutional structure and model of negation in ASEAN bring us to a crucial question: Is a working Asian ­human rights mechanism—­with sufficient ­legal and po­liti­cal power—­indeed pos­si­ble within the organ­ization? Or should aspirations for such a mechanism be taken elsewhere, outside ASEAN’s po­liti­cal umbrella, in order to actually be meaningful for the protection of h ­ uman dignity? A de­cade ago, ambassador Tommy

Consensus and ­Human Rights Politics • 73

Koh—­Singapore’s negotiator for the mooted new ASEAN Community—­ commented that “­there was no issue that took up more of [the negotiators’] time, no issue as controversial and which divided the ASEAN f­ amily so deeply as ­human rights” (Beng 2008). Indeed many have long witnessed that ­human rights are one of the most challenging issues discussed in ASEAN. Nevertheless, despite all the odds with the birth of the ASEAN Charter and the adoption of the AHRD, ASEAN has agreed on h ­ uman rights. ASEAN accepted and respected the diversity of po­liti­cal ideologies and systems among its members and declared consensus between member states as an indispensable princi­ple and even the sine qua non of regional cooperation. One should bear in mind therefore the va­ri­e­ties of stages that a regional organ­ization must take to overcome all the national and regional characteristics that may in practice hinder the establishment of a strong ­human rights mechanism but are inevitable for the survival of that organ­ization.

Conclusion ­ uman rights have been part of the institutionalized intergovernmental activH ity of ASEAN for more than a de­cade. Unfortunately pro­gress made by AICHR is less understood in its context of challenge and politics. Debates are focused more on the inability of AICHR to endorse member states to adopt legalistic agendas, which coincide with the dominant global rights discourse. It is true that some predicaments remain in ASEAN; however, we argue that an emphasis on a legal-­positivist approach of what norms ­ought to deliver has the consequence of overlooking the valuable insights of a po­liti­cal complexity in the pro­cess of institutionalization of ­human rights. By examining the broader institutional context that ­human rights actors need to consider, we are able to identify what ­human rights consensus actually means to this organ­ization, how consensus is built inside of AICHR, and how it is planned to resonate beyond AICHR. Our examination of AICHR shows that the body is not a typical ­human rights mechanism. As a part of cross-­border cooperation, AICHR is expected to lay building blocks for ­human rights perspectives that are implementable across ASEAN programs. It is not designed to go ­after violators or to offer alternative judicial readings on cases or punish the member states. AICHR is expected not to be alone in plowing through h ­ uman rights works. Despite its role as an overarching h ­ uman rights body, the AICHR, activities, and programs using ­human rights perspectives are driven not just by AICHR. Th ­ ere are other sectoral bodies and civil society activities that also advance initiatives and activities. However, being the government representatives and having the mandate to mainstream ­human rights princi­ples and values in all community pillars mean that AICHR has more of the convening, educating, and consultation ability than other ASEAN ­human rights mechanisms. When AICHR representatives are skillful enough to place and develop human-­rights-­related agendas and programs

74 • Irene Hadiprayitno and Dinna Prapto Raharja

in the main organs’ activities, the impact should not be underestimated. This is to say that expecting ASEAN to confront h ­ uman rights violations using l­egal agendas—­especially through AICHR—is only one issue that the global ­human rights community chooses to focus on. ­There are other ­factors, especially orga­ nizational structures and how AICHR interacts with other actors in ­those structures, that give better insight into why ASEAN does not have a strong ­human rights mechanism. AICHR is in the pro­cess of reviewing its ToR. One of the agendas in the review is to strengthen the protection mandate of AICHR, as some countries wish, but the success of pushing this agenda forward depends on the skill of the representatives as well as other (competing) agendas that some other member countries may push forth too. Without question, consensus building is part of the negotiation. However, politics is dominant in ASEAN, especially in the field of ­human rights negotiations. What may surface among the officials of the ASEAN is a discussion of a m ­ iddle ground that could bring along ASEAN member states rather than giving AICHR a stronger mandate for ­human rights work. One might therefore need to manage expectations ­here. AICHR needs to bridge h ­ uman rights norms with human-­rights-­related needs, sovereignty, and local realities faced by the rights holders in ASEAN member states. In this regard, we argue that even if the AICHR mandate is not strengthened to coincide with the dominant global rights discourse, actors and stakeholders should improve its current strength on other grounds, including creating initiatives as well as reminding and convening stakeholders. More research on to what extent such strategies could deliver improvements that gradually change how h ­ uman rights are perceived by a regional organ­ization whose members experience dif­fer­ent stages of democ­ratization would be valuable to our new understanding of ­human rights, outside the Western Hemi­sphere. One should not lose sight, moreover, of the importance of elevating the cross-­sectoral cooperation among the main organs, where AICHR could play a more prominent role too.

Notes 1 This argument entails that h ­ uman rights, as formulated in international law and applied by states in international relations, are incompatible with the uniqueness of Asian socie­ties and that ­human rights can be enjoyed only ­a fter a certain level of socioeconomic development is reached. 2 ­After 1997, ASEAN summits agreed to a plethora of protocols and action plans designed both to increase Southeast Asian integration and to establish a regional mechanism on ­human rights. 3 ASEAN Intergovernmental Commission on H ­ uman Rights (AICHR) Terms of Reference (ToR), paragraph 5.7. 4 AICHR ToR, paragraph 5.2. 5 The ASEAN Charter contains a separate section to regulate special entities with which the organ­ization conducts its work. A list of entities, such as civil society

Consensus and ­Human Rights Politics • 75

organ­izations, think tanks, ­etc., is registered in this section—­which also falls ­under the title “Annex 2,” hence the popu­lar name. 6 In the minus-­x consensus, some countries may move ahead in economic liberation on the basis that the other member states w ­ ill follow at a ­later stage

References Acharya, Amitav. 1998. “Culture, Security, Multilateralism: The ‘ASEAN Way’ and Regional Order.” Con­temporary Security Policy 19 (1): 55–84. https://­doi​.­org​/­10​.­1080​ /­13523269808404179. Beng, Kor Kian. 2008. “Consensus Needed on ­Human Rights: Prof Koh.” Straits Times, June 13. Davies, Mathew. 2017. “Impor­tant but De-­centred: ASEAN’s Role in the Southeast Asian ­Human Rights Space.” TRaNS: Trans-­Regional and -­National Studies of Southeast Asia 5 (1): 99–119. https://­doi​.­org​/­10​.­1017​/­trn​.­2016​.­27. Emmers, Ralf. 2017. “ASEAN Minus X: Should This Formula Be Extended?” www​.­rsis​ .­edu​.­sg. Ginbar, Yuval. 2010. “­Human Rights in ASEAN—­Setting Sail or Treading W ­ ater?” ­Human Rights Law Review 10 (3): 504–518. https://­doi​.­org​/­10​.­1093​/­hrlr​/­ngq024. Gomez, James, and Robin Ramcharan. 2012. “The Protection of H ­ uman Rights in Southeast Asia: Improving the Effectiveness of Civil Society.” Asia-­Pacific Journal on ­Human Rights and the Law 13:27–43. https://­heinonline​.­org​/­HOL​/­Page​?­handle​ =­hein​.­journals​/­apjur13&id​=­145&div​=­15&collection​=­journals. Hadiprayitno, Irene. 2019. “Deadlock and Denial: Domestic Challenges and the Institutionalization ­Human Rights in ASEAN.” Global Jurist 19 (1). https://­doi​.­org​ /­10​.­1515​/­g j​-­2018​-­0001. Jones, David Martin. 2008. “Security and Democracy: The ASEAN Charter and the Dilemmas of Regionalism in South-­East Asia.” International Affairs 84 (4): 735–756. https://­doi​.­org ​/­10​.­1111​/­j​.­1468​-­2346​.­2008​.­00735​.­x. Jones, Lee. 2010a. “ASEAN’s Unchanged Melody? The Theory and Practice of ‘Non-­ Interference’ in Southeast Asia.” Pacific Review 23 (4): 479–502. https://­doi​.­org​/­10​ .­1080​/­09512748​.­2010​.­495996. —­—­—. 2010b. “Still in the ‘­Drivers’ Seat,’ but for How Long? ASEAN’s Capacity for Leadership in East-­Asian International Relations.” Journal of Current Southeast Asian Affairs 29 (3): 95–113. https://­doi​.­org​/­10​.­1177​/­186810341002900305. Katsumata, Hiro. 2009. “ASEAN and H ­ uman Rights: Resisting Western Pressure or Emulating the West?” Pacific Review 22 (5): 619–637. https://­doi​.­org​/­10​.­1080​ /­09512740903329731. Kraft, Herman. 2012. “RtoP by Increments: The AICHR and Localizing the Responsibility to Protect in Southeast Asia.” Pacific Review 25 (1): 27–49. https://­doi​.­org​/­10​ .­1080​/­09512748​.­2011​.­632963. Munro, James. 2011. “The Relationship between the Origins and Regime Design of the ASEAN Intergovernmental Commission on H ­ uman Rights (AICHR).” International Journal of H ­ uman Rights 15 (8): 1185–1214. https://­doi​.­org​/­10​.­1080​/­13642987​ .­2010​.­511996. Narine, Shaun. 2009. “ASEAN in the Twenty-­First ­Century: A Sceptical Review.” Cambridge Review of International Affairs 22 (3): 369–386. https://­doi​.­org​/­10​.­1080​ /­09557570903104065.

76 • Irene Hadiprayitno and Dinna Prapto Raharja

Nesadurai, Helen E. S. 2009. “ASEAN and Regional Governance a­ fter the Cold War: From Regional Order to Regional Community?” Pacific Review 22 (1): 91–118. https://­doi​.­org​/­10​.­1080​/­09512740802651169. Nischalke, Tobias Ingo. 2000. “Insights from ASEAN’s Foreign Policy Co-­operation: The ‘ASEAN Way,’ a Real Spirit or a Phantom?” Con­temporary Southeast Asia 22 (1): 89–112. https://­doi​.­org​/­10​.­2307​/­25798480. Regilme, Salvador Santino F. 2019. “The Global Politics of H ­ uman Rights: From ­Human Rights to H ­ uman Dignity?” International Po­liti­cal Science Review 40 (2): 279–290. https://­doi​.­org​/­10​.­1177​/­0192512118757129. Steffek, Jens. 2003. “The Legitimation of International Governance: A Discourse Approach.” Eu­ro­pean Journal of International Relations 9 (2): 249–275. https://­doi​ .­org​/­10​.­1177​/­1354066103009002004. —­—­—. 2007. “Legitimacy in International Relations: From State Compliance to Citizen Consensus.” In Legitimacy in an Age of Global Politics, edited by Achim Hurrelmann, Steffen Schneider, and Jens Steffek, 175–192. Basingstoke: Palgrave Macmillan. https://­doi​.­org ​/­10​.­1057​/­9780230598393​_­9. Wisnu, Dinna. 2018a. “Khassoggi and Skripal.” iNews.id, November 26. https://­w ww​ .­inews​.­id​/­news​/­internasional​/­k hasshoggi​-­dan​-­skripal​/­1​?­page​=­a ll. —­—­—. 2018b. “Yaman yang luput dari perhatian.” Koran Sindo, August 29. http://­ koran​-­sindo​.­com​/­page​/­news​/­2018​-­08​-­29​/­0​/­21​/ ­Yaman​_ ­yang​_ ­Luput​_­dari​ _­Perhatian. —­—­—. 2019. “How to Overcome Flaws in ASEAN’s H ­ uman Rights Body.” Jakarta Post, October 31. https://­w ww​.­thejakartapost​.­com​/­academia​/­2019​/­10​/­31​/­how​-­to​ -­overcome​-­flaws​-­in​-­asean​-­rights​-­body​.­html.

5

Skewed Vision ­ uman Rights in War through H the Eyes in Peace KA LOK YIP

Koskenniemi once satirized the “proj­ects of the world community” that underpin much of international law by comparing them to the “oceanic feeling” of religious experience critiqued by Freud (Koskenniemi 2012, 3–4). The insinuation was that international ­lawyers advocating the rights of ­others are often driven by the feeling of being in ­union with the rest of the world, being able to experience what ­people on the other shore of the ocean experience and thus being qualified to speak and act on their behalf, in their interest. This feeling of communion, along with the under­lying assumption of the objectivity of knowledge and the oblivion to its situatedness, had long intrigued standpoint theorists like Dorothy Smith, who self-­reflexively questioned the seemingly transpersonal quality of everyday experience: Riding a train not long ago in Ontario I saw a f­ amily of Indians—­woman, man, and three ­children—­standing together on a spur above a river watching the train go by. I realized that I could tell this incident—­the train, ­those five ­people seen on the other side of the glass—as it was, but that my description was built on my position and my interpretations. I have called them “Indians” and a ­family; I have said they w ­ ere watching the train. My understanding has 77

78 • Ka Lok Yip

already subsumed theirs. Every­thing may have been quite dif­fer­ent for them. (Smith 1990, 24–25)

This chapter draws on the insights from standpoint theory to critique international h ­ uman rights law (IHRL) as it is applied in war but adjudicated in forums situated in peace, as a common phenomenon in the current enforcement system of IHRL. B ­ ecause of the inherent fluidity and open-­endedness of the idea of ­human rights, this system has enabled the reading of the ­human rights “situation” in a distant po­liti­cal community precisely “out of situation” of that po­liti­ cal community. This has skewed the vision of h ­ uman rights t­ oward the sense and taste of the po­liti­cal community where the ­human rights situation is “read,” rather than the material conditions where the experience of ­these ­human rights is “situated.” Nowhere is this predicament more con­spic­u­ous than in the discourse in certain Western nations on the h ­ uman rights situation in countries suffering from the very wars waged by ­these Western nations. This chapter uses the recent history of British and Eu­ro­pean h ­ uman rights litigation concerning the United Kingdom’s military activities in Iraq and Af­ghan­i­stan to illustrate this predicament. It traces how the well-­meaning effort to uphold war­time “­human rights,” an abstract idea bound up with the episteme of the dominant po­liti­cal community in Eu­rope, has skewed the vision of “­human rights in war” to one easily recognizable to the eyes in peace, fit for domestic po­liti­cal consumption in the West, but divorced from the lived experience of ­those situated in war. It problematizes the increasingly accepted knowledge of what “­human rights” means in the context of war by uncovering its situated origins and explores the complicity of prevailing l­egal approaches in disguising hegemony as universality. It warns of the dangerous tendency for the current IHRL enforcement system to degrade war­time h ­ uman rights standards victimized by foreign aggression, delegitimize h ­ uman rights institutions as a potential force for good, and depress ­human rights situations worldwide when occasional compromises of standards are generalized through cross-­fertilization. This chapter illustrates the skewed vision of h ­ uman rights in war in three dimensions. First, it studies the se­lection and conduct of cases of alleged ­human rights violations during the conflicts in Iraq and Af­ghan­i­stan before the Eu­ro­ pean Court of ­Human Rights (ECtHR) to demonstrate that the vision of ­human rights violations in armed conflict, as produced in Eu­rope, is permeated with the sense and sensibility of the peaceful Eu­ro­pean socie­ties and divorced from the lived real­ity in the conflict zone. It then examines the sociopo­liti­cal pressure facing the judges in Eu­rope when they adjudicate t­ hese h ­ uman rights cases to reveal how their decisions are likely influenced by domestic considerations in Eu­rope. Fi­nally, it delves into ­legal doctrines to scrutinize the “­legal techniques” that have allowed the ­limited standards of h ­ uman rights in armed conflicts, formulated in a par­tic­u­lar background, to pass as universal.

Skewed Vision • 79

Rights Are in the Eye of the Beholder Standpoint theory maintains that our view of the world comes not from nowhere but from a certain standpoint. This standpoint is embedded in what Smith called the practices of “governing” or relations of “ruling” in the sense of “that total complex of activities, differentiated into many spheres, by which our kind of society is ruled, managed and administered” (Smith 1990, 14). It is only in ­these practices of governing or ruling within par­tic­u­lar institutional contexts that certain issues acquire their relevance and become formulatable (Smith 1990, 15). This section uncovers the link between the framing of the claims for ­human rights violations in war and the “ruling” of the peaceful society that often hosts the forums for t­ hese claims. Through the prism of the leading cases u­ nder the Eu­ro­pean Convention on H ­ uman Rights (ECHR) concerning alleged ­human rights violations by the United Kingdom’s military activities in Iraq and Af­ghan­ i­stan, it reveals a distinctly Eurocentric standpoint in the se­lection and conduct of ­these cases. The commonality between the kind of harm perceived to have been suffered by war victims and the kind of harm recognized in the peaceful socie­ties as blameworthy readily maps onto Bourdieu’s analy­sis of the constructed nature of the notion of rights violation. As Bourdieu argued, “The conversion of an unperceived harm into one that is perceived, named, and specifically attributed presupposes a ­labor of construction of social real­ity. . . . ​The discovery of injustice as such depends upon the feeling that one has rights (‘entitlement’). . . . ​ The law is the quin­tes­sen­tial form of ‘active’ discourse, able by its own operation to produce its effects” (Bourdieu 1986, 833, 839). In other words, the “harm” suffered by the victims in ­these leading cases came to be recognized as such due in large part to a preexisting discourse on the notion of “harm” in the socie­ties where ­these cases ­were litigated. It is ­because certain harm is already identified, formulated and taken as a cause for l­ egal redress that its characteristics, even when pre­sent in a faraway war setting, become imbued, perhaps even exclusively, with the hallmark of a l­egal wrong. The notion of “­human rights violation in war,” as pop­u ­lar­ized in the peaceful socie­ties in Eu­rope, is thus inherently ­shaped and colored by the sense and taste, not of the ­people who actually live in war, but of the dominant po­liti­cal communities in ­those peaceful socie­ties of Eu­rope. The social imaginary of “­human rights violation in war” therefore connects directly to the par­tic­u­lar sociopo­liti­cal real­ity of the peaceful socie­ties, rather than that of the conflict-­ridden socie­ties. This entails a series of consequences in the se­lection and conduct of the claims for ­human rights violation in war.

Se­lection of Cases: Mousa versus the Rest in Al-­Skeini v. UK If h ­ uman rights violation in war can be recognized as such only when it has a qualitatively similar counterpart in the place where the violation is claimed and

80 • Ka Lok Yip

litigated, then only a small portion of “harm” is recognizable in a war setting based on its overlap with the notion of “harm” in peace. A large portion of what goes on in war would never qualify as harm deserving of ­legal redress for the lack of a counterpart in peacetime. This poses severe limitations on the case se­lection for litigation on claims for h ­ uman rights violation. Th ­ ese limitations then go into a feedback loop to further constrict our understanding of what “­human rights in war” should mean ­because of the constructive power of the law. Enter Baha Mousa,1 the h ­ otel receptionist in Basra who was taken by British soldiers to their military base during the United Kingdom’s invasion of Iraq in 2003 and was tortured to death. Mousa’s case was among the six deaths that occurred at dif­fer­ent stages of the United Kingdom’s invasion and subsequent occupation of Iraq and that ­were selected as test cases for the alleged violation of the right to life ­under article 2 of ECHR, grouped ­under the name of the first claimant, Al-­Skeini v. UK.2 But Mousa’s case by far eclipsed the other five cases. It was the first and the only case acknowledged by U.K. domestic courts to attract the United Kingdom’s h ­ uman rights jurisdiction over the Iraqi victims ­under the ECHR, despite its occurrence in Iraq. That acknowl­edgment was made on the basis of “the exercise of State authority in or from a location which had a discrete quasi-­territorial quality, or where the State agent’s presence in the foreign State was consented to by that State and protected by international law, such as embassies, consulates, vessels and aircraft registered in the respondent State.”3 While lengthy l­egal debates have been generated by this and other cognate criteria of “jurisdiction” u­ nder the ECHR (Besson 2012; Milanovic 2018; Yip 2018), insufficient attention has been paid to the quality of the setting sketched by this delineation of “jurisdiction,” which coincides with the very setting that would allow the most egregious domestic crime to be committed b­ ecause of the physical control by the perpetrator over the victim. This type of control is missing during open hostilities in war, where ­those engaging in violent acts would not usually have the occasion to torture; it is only in the narrow circumstances of intimate control outlined in the jurisdictional test in Al-­Skeini that the most spectacular vio­lence resembling the kind experienced by Mousa could occur. Indeed, the facts in the Mousa case revealed in essence a criminal act that, given the presence of a culpable individual in a similar setting of total control, could happen anywhere, anytime, ­whether in Iraq in war or in the United Kingdom in peacetime. It drew outrage from the public and won sympathy in court in the United Kingdom b­ ecause of a level of vio­lence that also characterizes the most heinous domestic criminal cases. The construction of “­human rights violation in war” as a harm directly attributable to culpable individual perpetrators essentially reduces the notion to straightforward “criminality” commonly relatable to a Eu­ro­pean audience situated in peace. The resulting simplistic equation of ­human rights violation to individual wrongdoing is in line with the observation by ­human rights theorists that acts “whose ­causes can be assigned to the deliberate (intentional) actions of

Skewed Vision • 81

identifiable individuals” with a “sufficiently short and clear” causal chain are most likely to make a successful ­human rights campaign in the West (Keck and Sikkink 2014, 27). This focus on the individual perpetrators in recognizing and qualifying ­human rights violations in war ironically decontextualizes ­these violations from war. This decontextualization is particularly clear when Mousa’s case is contrasted with the five remaining deaths in Al-­Skeini that happened ­either during open hostilities or in much more ambiguous circumstances of perceived danger to the soldiers,4 and are precisely deaths that could not have occurred but for the war and “whose ­causes are irredeemably structural” (Keck and Sikkink 2014, 27). The difficulty in recognizing, let alone comprehending this harm, for a po­liti­cal community situated in peace arguably explains the dif­fer­ent trajectory of ­these five cases. They had much greater difficulty in gaining traction before the U.K. domestic courts, and the United Kingdom’s ­human rights jurisdiction over ­these victims was not recognized ­until t­ hese cases fi­nally reached the ­Grand Chamber of the ECtHR. Even then, the final “victory” before the ECtHR came with a severe limit in terms of the remedies—­also reflective of the skewed vision of “­human rights in war”—­because of the way t­ hese claims w ­ ere conducted, as w ­ ill be seen in the next subsection. If only t­ hose cases that approximate crimes committed by agential individuals would ever be selected as cases of h ­ uman rights violations, the enormous amount of deaths and injury and destruction inevitably occasioned by operation of the war machinery appears rather like fortuitous events without identifiable or remediable ­causes instead of ­human rights violation that could and should be prevented. This narrative, by derecognizing ­these deaths and injury and destruction as harm for the lack of an agential cause, precisely serves the interest of collective entities by sustaining the immunity of the use of their structural powers to unleash massive vio­lence in war.

Conduct of the Claim: Phil Shiner If the recognition of h ­ uman rights violation in war as such depends on the presence of criminal conduct, the first hurdle facing the claimants is evidence gathering. How would one go about obtaining proof of such individualized acts amid the chaos of war to establish such violations? One prob­ably needs to rely heavi­ly on witnesses who can testify to the specific circumstances of the alleged criminal acts. Where to find them in a postconflict society? One prob­ably needs to rely on local ­people. In a war-­torn country, what kind of local ­people would be motivated to provide such assistance to foreign ­lawyers claiming to bring justice to local ­people in a foreign court? Most likely agents who make it their profession to collate such evidence for economic gain. This then generates the kind of dynamics that would ­later form the basis of allegations before the Solicitors Disciplinary Tribunal against Phil Shiner, the En­glish l­awyer who brought many of the leading cases against the U.K. government for violations of the ­human

82 • Ka Lok Yip

rights of Iraqis during the Iraq War. ­These allegations precisely relate to vari­ous breaches of professional conduct: touting, improper payments to witnesses, unreliable evidence, and so forth.5 This skewed vision of ­human rights in war also tends to dilute the substance of the claim itself. For instance, the ­actual claim made in Al-­Skeini was not for the violation of the United Kingdom’s substantive obligation not to intentionally deprive life, but its procedural obligation to investigate the circumstances of death. At the height of the public outcry in the United Kingdom, the U.K. government set up the Iraq Historic Allegations Team (IHAT) to investigate ­these deaths and other allegations, which had been very much focused on individual misconduct, rather than any structural prob­lems. With the premature closure of IHAT partly triggered by the allegations about professional misconduct against Phil Shiner, “any remaining Iraq legacy investigations would be reintegrated into the ser­vice police system” (IHAT n.d.). As of June 30, 2020, out of the 1,287 allegations inherited from IHAT by the Ser­vice Police Legacy Investigations (SPLI), 1,213 had been or w ­ ere being closed and w ­ ere listed in a t­ able on SPLI’s website by case numbers to inform their complainants as follows: Please use your unique number to find your case. If it is listed below, it has been closed. CLOSED (proportionality): You made a complaint about the conduct of UK Armed Forces in Iraq. This complaint has been carefully considered by SPLI, an in­de­pen­dent investigative unit. It has been de­cided to close your case, without further action, as t­ here is a lack of evidence of a serious criminal offence. It is also not considered proportionate to investigate further given the length of time that has passed. CLOSED (Lack of evidence): You made a complaint about the conduct of UK Armed Forces in Iraq. This complaint has been carefully considered by SPLI, an in­de­pen­dent investigative unit. It has been de­cided to close your case, without further action, as t­ here is a lack of sufficient, credible evidence of a criminal offence. This decision also took into the account findings against UK solicitors involved in ­legal proceedings concerning military operations in Iraq. (SPLI n.d.)

­ ere is a separate inquisitorial mechanism called the Iraq Fatalities InvestigaTh tions (IFI) to “establish by what means and in what circumstances the deceased came about his death” and “consider making recommendations about lessons learned, where appropriate” provided that it “should carefully consider the extent to which it is necessary and proportionate to examine such issues if ­those issues have already been covered by the Ministry of Defence or other inquiries.” Only “appropriate cases are referred by the Ministry of Defence only ­after it has been

Skewed Vision • 83

de­cided that ­there is no realistic prospect of a criminal conviction and all criminal investigations and review pro­cesses have been completed” (IFI n.d.). One cannot help won­der what would have happened had a dif­fer­ent litigation strategy been pursued from the beginning. Had the focus been on t­ hose cases mundane to the eyes of a Western audience for the lack of any criminality, and yet connected to the deep logic and structure of international war, the picture of “­human rights violation in war” that emerged would be very dif­f er­ent. It would be truly “situational” for they are unlikely to have happened but for the invasion of Iraq. This stands in contrast to “­human rights violations in war” based on criminal conduct, which paints a picture of randomness, as if they could have happened anywhere to anyone as long as t­ here are “bad p­ eople” in the world, regardless of the structured context in which p­ eople find themselves. The alternative litigation strategy could precisely interrogate the responsibility for that wider context, without which interrogation the “remedy” w ­ ill always remain at the procedural level (investigation) rather than the substantive level (redress). And when the investigation never gets beyond the most obvious criminal conduct or discretionary referral to an inquest with highly circumscribed mandate, the practical result is a whitewash for the invasion itself. When the IHRL enforcement system relies on the “practices of ruling” in a peaceful society to uphold the ­human rights standards in conflict, it is worth considering any blind spots ­toward the lived experience of conflict. The cases above illustrate how the attempts to uphold the ­human rights of ­others without reflecting on the limits of one’s own standpoint could end up d­ oing o­ thers a disser­vice by privileging one’s own perception over ­others’, thereby foreclosing any genuine engagement with the latter’s grievances and demands.

Sociopo­liti­cal Con­ve­nience of Forgoing ­Others’ Rights The eventual choice by activist l­awyers of an approach that merely questioned the United Kingdom’s compliance with its procedural obligation to investigate death, rather than the deeper substantive obligation to protect life, could also have been made out of strategic calculation. Could a court, which is geo­graph­i­ cally remote and po­liti­cally unaccountable to the victims of ­these alleged violations, be expected to exercise its inevitable judicial discretion in f­ avor of the foreign victims against its own national or regional interest? Although a court with the moral integrity to speak right to interest cannot be ruled out, the requirement for investigation of wrongdoings (with all the epistemic limitations it entails) might have been considered more realistic. This strategic option is not however available in relation to ­every right. For instance, it is not similarly available to a claim for the right to liberty, where substance and procedures are much more closely bound up together and tough questions would need to be asked and stark choices made—is war­time internment of individuals compatible with the right to liberty?

84 • Ka Lok Yip

This question was ultimately asked in Hassan v. UK.6 Hassan was a young Iraqi man who died in mysterious circumstances ­after a short period of war­time internment by the U.K. forces invading Iraq. The route fi­nally chosen to obtain “justice” for him was to allege violation of the right to liberty ­because of the lack of proof required to establish any criminal act of killing attributable to the United Kingdom7—­partially a side effect of individualizing the perceived harm in war, which relies heavi­ly on the evidence given by individual witnesses. While the allegation of violation of the right to liberty was also rejected by the ECtHR based on doctrinal reasons that ­will be dealt with in the next section, the decision was clearly underpinned by policy considerations. How could Eu­ro­pean powers conduct military activities overseas g­ oing forward if all war­time internment w ­ ere to be held illegal u­ nder the ECHR, which on its face does not permit deprivation of liberty on grounds of war­time internment? Indeed, when a similar question arose in Al-­Waheed and Serdar Mohammed, the U.K. Supreme Court also held that war­time internment in Iraq and Af­ghan­i­stan by the United Kingdom was compatible with the ECHR.8 The litigation exemplified by t­ hese leading cases effectively put ­those situated in permanent peace in a position to judge the rights entitlement of ­those situated in endless war. This existential asymmetry structurally predisposes the judges to defer foreign victims’ welfare to their nations’ military and po­liti­cal interests ­because, as Habermas observed, even “the ‘well-­intentioned hegemon’ ­will . . . ​encounter insuperable cognitive obstacles . . . ​[in] distinguishing its own national interests from the universalizable interests that all the other nations could share” (Habermas 2006, 184). Ní Aoláin even commented on the U.K. Supreme Court’s majority decision on Al-­Waheed and Serdar Mohammed in the following candid terms: The majority decision is pervaded by sensitivity to military challenges in armed conflict (one might say this is necessary pragmatism). This antenna to po­liti­cal realities can be read as an acknowledgement of strong media and po­liti­cal responses that have been elicited when British soldiers have been prosecuted for actions taken in Iraq, Af­ghan­i­stan and Northern Ireland. Moreover, t­ hese judges are channeling the executive po­liti­cal apathy for the Eu­ro­pean Convention and its domestic vehicle, the H ­ uman Rights Act. The latter is increasingly ­under threat of being dismantled by the Conservative government. . . . ​We need to bear in mind the tremendous po­liti­cal pressure the Convention (and by extension t­ hese judges) face in the United Kingdom. (Ní Aoláin 2017)

What ­these commentaries have revealed is the often overlooked sociopo­liti­cal base in Eu­rope under­lying the decisions that purport to define and articulate the ­human rights standards in the M ­ iddle East. Quite apart from the epistemic limitations inherently faced by ­these Eu­ro­pean decision makers, their decisions are also arguably influenced by their own national po­liti­cal considerations. If ­these

Skewed Vision • 85

commentators are right that this type of human-­rights-­defining decision in fact facilitates the self-­interested imposition of par­tic­u­lar values on o­ thers u­ nder the disguise of universality, fundamental doubt may be cast on the legitimacy of IHRL as a potential force for good.

­Human Rights Imperialism 2.0: Violation as Compliance While ­there ­were clear policy reasons under­lying the decisions mentioned in the last section, t­ hese decisions could not have been a­ dopted without the overt support of ­legal doctrines. This last section examines how ­these l­ egal doctrines have been utilized by vari­ous courts to engineer decisions compatible with their standpoint and favorable to their own national or regional interest while maintaining the appearance of value neutrality of international law and the universality of the ­human rights standards it purports to propound. The usual means by which t­ hese courts find compliance of the vari­ous acts of war with IHRL despite the latter’s explicit prohibition is by deferring IHRL to another body of international law, the law of armed conflicts (LOAC). Born out of the practical necessity to ameliorate the suffering in war, LOAC accepts the real­ity of war without questioning its legality and regulates the conduct of hostilities and the restrictions of freedom to make them more “humane.”9 Bearing in mind the sharp warning that “whoever invokes humanity wants to cheat” (Schmitt 2008, 54), LOAC is also known as international humanitarian law (IHL), onto which the adjudicators of ­human rights in war have eagerly latched. Initially, this was accomplished by the application of l­egal technique of lex specialis, according to which the law that has a narrower application (Sassòli and Olson 2008, 604) or contains more details (Milanovic 2011, 233, 251), which is often though not always LOAC, is deemed to be the more “special” law.10 The idea was that despite the prohibition by IHRL, an act of war, ­whether it deprives one of one’s life or liberty, would comply with IHRL so long as it complies with LOAC as the latter is more “special.” Since its use was first made famous by the International Court of Justice in the advisory opinion on the legality of nuclear weapons, this l­egal technique has given way to the more nuanced and more ambiguous technique of systemic integration, based on article 31(3)(c) of the Vienna Convention on the Law of Treaties requiring that in interpreting a treaty, ­there ­shall be taken into account other relevant rules of international law applicable in the relations between the parties. Precisely b­ ecause of its ambiguity, systemic integration tends to openly admit policy f­ actors into consideration in the adjudication. The gradual fusion between ­these two techniques and the gradual loss of critical scrutiny by scholars over their use in deferring IHRL to LOAC can be illustrated by the view expressed in a report by the study group of the International Law Commission on the fragmentation of international law (Study Group of the International Law Commission) that the use of lex specialis to defer IHRL to LOAC does not

86 • Ka Lok Yip

function in a formal or absolute way but as an aspect of the pragmatics of the Court’s reasoning. However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in ­those (exceptional) circumstances. Legality of Nuclear Weapons was a “hard case” to the extent that a choice had to be made by the Court between dif­fer­ent sets of rules none of which could fully extinguish the ­others. Lex specialis did hardly more than indicate that though it might have been desirable to apply only h ­ uman rights, such a solution would have been too idealistic, bearing in mind the speciality and per­sis­tence of armed conflict. (Study Group of the International Law Commission 2006, para. 104)

The use of lex specialis as a disguise for subjective policy judgment (Lowe 2001, 220; Simma and Pulkowski 2006, 490), first euphemized as “an aspect of the pragmatics of the Court’s reasoning,” was further rationalized in systemic terms, “so the Court created a systemic view of the law in which the two sets of rules related to each other as t­ oday’s real­ity and tomorrow’s promise, with a view to the overriding need to ensure ‘the survival of a State’ ” (Study Group of the International Law Commission 2006, para. 104). This somewhat amorphous rendition of “systemic integration” con­ve­niently skips the hard questions directed at the lex specialis doctrine, “on what basis the relevant facts are singled out, what justifies the choice of the interpretative framework. To what extent does fact-­ description ‘armed conflict’ influence the sense of the expression ‘arbitrary deprivation of life’ in article 6 of the International Covenant on Civil and Po­liti­ cal Rights?” It does so by shielding the decision b­ ehind the vague motto of “systemic objectives of the law”: “­Here ­there is no single formula. A weighing of dif­f er­ent considerations must take place and if that weighing is to be something ­else than the expression of a preference, then it must seek reference from what may be argued as the systemic objectives of the law, providing its interpretative basis and milieu” (Study Group of the International Law Commission 2006, para. 107). ­These “pragmatics” of the court’s reasoning, in the context of systemic integration, effectively substitute the princi­ples that justify the choice of governing law with the so-­called “systemic view of the law” obliquely created by the court and turn the l­ egal technique of “systemic integration” into a blank check to exercise discretion. Systemic integration thus serves as a shortcut to legitimate one’s own “oceanic feeling,” ironically so alarming to the main author of the ILC Report (Koskenniemi 2012, 3–4), about what the objectives of the system actually are. As Sassòli and Olson pointed out, “the conformity of the solution to the systemic objectives of the law” is “[a] less formal—­and also less objective—­ factor for determining which of two rules applies” and “the systemic order of international law is a normative postulate founded on value judgements” (Sassòli

Skewed Vision • 87

and Olson 2008, 604). The evolution of ­legal techniques in the interaction between IHRL and LOAC thus has a direct effect on the legitimate level of discretion allowed in the adjudication pro­cess. The increasing use of systemic integration gives the law appliers unpre­ce­dented discretion to decide issues of enormous po­liti­cal significance on the legality of dif­f er­ent acts of warfare ­under IHRL without having to account for their bases openly. It thus provides a perfect cover for t­ hese law appliers to apply a facially neutral law to achieve the desired po­liti­cal outcomes from their own par­tic­u ­lar standpoints. While one cannot read the minds of the judges to scrutinize how they use their discretion, certain deductions could be made based on the character of the law and the judges’ choices. LOAC is a law that takes war as real­ity without questioning its legality, and for that reason it is separate and in­de­pen­dent from the law that regulates the use of force in international relations, that is, jus ad bellum (Doswald-­Beck 1997; Sassòli 2007; Roberts 2008; Okimoto 2011). By deferring IHRL to LOAC, ­whether through lex specialis or systemic integration, and however explicit one might be in taking into account policy ­factors, an adjudicator can effectively sidestep the most fundamental question about the structural c­ auses of the suffering in war, that is, the war itself and its legality—­should force have been used? Eu­ro­ pean tribunals’ aversion to adjudicating IHRL claims based on jus ad bellum is entirely aligned with their tendency to defer IHRL to LOAC—­other­wise, they risk being situated in an impossible place to pronounce on the illegality of an aggressive war waged by the very nation that appoints them (Roberts 2013, 99–100). This provides the essential background to reading the ECtHR’s decision in Hassan v. UK to absolve the United Kingdom of any liability to Iraqis detained during its illegal invasion. By interpreting the ECHR’s prohibition on the deprivation of liberty in such a way as to allow war­time internment ­under LOAC,11 the decision implicitly accepted, just like LOAC does, aggression as it is. The adjudicators made no attempt to situate themselves in the place of the Iraqis interned by the U.K. forces invading Iraq. They made no attempt to examine ­whether or not the war was an illegal aggression. From their standpoint, situated in peace, the Iraqis’ exposure to innumerable and incalculable war-­related risks, as indeed materialized on the destiny of Hassan, could be dismissed as ­matters of fortuity in the vicissitudes of life. The rapid formation of l­ egal doctrines that defer IHRL to other ­legal regimes with very dif­f er­ent regulatory purposes in mind than the h ­ uman rights of t­ hose situated at the receiving end of the fire is alarming. When the dilution of h ­ uman rights standards is justified using nominally neutral ­legal techniques such as lex specialis or systemic integration that are highly manipulable for po­liti­cal ends, ­human rights violation effectively becomes normalized as ­human rights compliance. This po­liti­cally driven dilution of h ­ uman rights standards in foreign land and its equally po­liti­cally driven acquiescence or even support by their domestic

88 • Ka Lok Yip

audience, in the par­tic­u ­lar context of extraterritorial application of IHRL to armed conflicts, create three jeopardies for h ­ uman rights as a l­egal institution: delegitimation, degradation, and disenchantment. First, the use of l­egal techniques to dilute the IHRL entitlement of the victims of aggression to the point of omitting the illegality of the aggression itself to enable IHRL compliance, by adjudicators precisely situated in the aggressor states, risks founding an advanced form of “­human rights imperialism.” The failure of the IHRL tribunals in the cases studied above to scrutinize the legality of the United Kingdom’s invasion of Iraq and their readiness to assert IHRL compliance based on dubious l­egal techniques that serve as conduits of “policy” (Milanovic 2011, 252) or “pragmatics” (Study Group of the International Law Commission 2006, para. 104) risks turning “­human rights” into a tool of aggressors to whitewash the war by normalizing violations as compliance “in the context of an armed conflict.”12 Second, unlike the old “­human rights imperialism” of imposing foreign standards on local ­peoples (Modirzadeh 2010, 385–389), this new “­human rights imperialism” in theory generalizes the new, depressed standards of ­human rights in one conflict to all conflicts worldwide through judicial or quasi-­ judicial cross-­fertilization, even though an Iraqi, Afghani, or international court hearing the claim might not have originated ­those standards. The misuse of systemic integration to enable “compliance” with ­human rights norms in armed conflicts by preemptively diluting their requirements removes the need for derogation,13 thus circumventing the built-in safeguards u­ nder bespoke conventions and avoids the stigma of “displacement” of rights, thus masking the need for po­liti­cal accountability. While local actors situated in war might have managed to take their ­causes to the domestic or regional courts in faraway peaceful socie­ties, the resulting judicial discourse has been heavi­ly s­ haped by the structure and substance of the domestic considerations of t­ hese peaceful socie­ties, into which ­these cases must fit if they are to have any chance of success. If the shaping of the “global system” of ­human rights in war by such judicial discourse counts as a “vernacularization” of ­human rights, it is not a vernacular spoken in or understandable to socie­ties situated in war (Merry and Levitt 2017, 214). Third, despite the formal equality between states in theory, only certain states in the world face the daunting prospects of “endless wars” in practice, partly enabled by the “human-­rights compliance” by the states that participate in them. The diluted standards of ­human rights in war then create a pattern of consistently asymmetric transaction in the international system (Lees 2012, 210–211) that effectively bifurcates the ­human rights standards in the world, one for the regions suffering “endless wars,” structurally subordinated to the other for the regions in peace, making a mockery of the supposed universality of ­human rights. The admirable proj­ect to “take ­human rights to places” through

Skewed Vision • 89

extraterritorial application of IHRL (Milanovic 2011, 230) thus risks turning them into hypocritical rhe­toric that would only disenchant the very ­people they are meant to serve.

Conclusion The oceanic feeling of religion is rightly cautioned by postmodernists when it creates the risk of abuse by existing hegemons to entrench and reinforce their hegemony by passing their par­tic­u­lar values off as universal and imposing them on the rest of the world ­under the cover of vague ­legal techniques. Yet the caution on the risk of presumptuous universalization without universality should not be taken as an endorsement of the opposite, solipsistic worldview where interpersonal and intersubjective understanding is simply impossible. Indeed, standpoint theorists also admit “it is a ­mistake to move from the thesis that knowledge is socially constructed . . . ​to the conclusion that ­those who are differently located socially can never attain some understanding of our experience or some sympathy with our cause” (Narayan 2004, 219–220). As the Study Group of the International Law Commission conceded, law could potentially have a useful role to play in bridging the gap between dif­fer­ent rationalities through its “willingness to listen to ­others, take their points of view into account and to find a reasoned resolution” (Study Group of the International Law Commission 2006, para. 487). Being reflexive about the difference in vantage points between oneself and the Other, denaturalizing the assumptions about the Other’s interest, and trying to situate oneself closer to the Other could allow ­those situated in peace, with their material advantage in improving the plight of ­those situated in war, to begin to appreciate what h ­ uman rights in war should truly entail and to critically reexamine ­whether the current state of international law protects or undermines ­those rights.

Notes 1 See Al-­Skeini v. United Kingdom, ECHR 1093 (2011), paras. 63–66. 2 Al-­Skeini v. United Kingdom. 3 Al-­Skeini v. United Kingdom, para. 75. 4 Al-­Skeini v. United Kingdom, paras. 34–62. 5 See https://­w ww​.­lawgazette​.­co​.­uk​/­news​/­phil​-­shiner​-­struck​-­off​-­for​-­dishonesty​-­over​ -­iraqi​-­claims​/­5059657​.­article. 6 Hassan v UK, ECHR 1162 (2014). 7 See ECHR, art. 5. 8 Abd Ali Hameed Al-­Waheed (Appellant) v. Ministry of Defence (Respondent); Serdar Mohammed (Respondent) v. Ministry of Defence (Appellant), UKSC 2 (2017). 9 Common article 1 to the four Geneva Conventions 1949. 10 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Rep 226 (1996), para. 25.

90 • Ka Lok Yip

11 Hassan v UK, paras. 101–105. 12 Al-­Waheed and Serdar Mohammed, per Lord Sumption, para. 52. 13 See, e.g., ECHR, art. 15.

References Besson, S. 2012. “The Extraterritoriality of the Eu­ro­pean Convention on H ­ uman Rights: Why H ­ uman Rights Depend on Jurisdiction and What Jurisdiction Amounts To.” Leiden Journal of International Law 25 (4): 857–884. Bourdieu, P. 1986. “The Force of Law: ­Toward a Sociology of the Juridical Field.” Hastings Law Journal 38 (5): 805–853. Doswald-­Beck, L. 1997. “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.” International Review of the Red Cross 37:35–55. Habermas, J. 2006. The Divided West. Cambridge: Polity. Iraq Fatalities Investigations (IFI). n.d. https://­w ww​.­gov​.­uk​/­government​/­collections​ /­iraq​-­fatality​-­investigations. Iraq Historic Allegations Team (IHAT). n.d. https://­w ww​.­gov​.­uk​/­government​/­groups​ /­iraq​-­historic​-­a llegations​-­team​-­ihat. Keck, M. E., and K. Sikkink. 2014. Activists beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press. Koskenniemi, M. 2012. “Proj­ects of World Community.” In Realizing Utopia: The ­Future of International Law, edited by A. Cassese, 3–13. Oxford: Oxford University Press. Lees, N. 2012. “The Dimensions of the Divide: Vertical Differentiation, International In­equality and North–­South Stratification in International Relations Theory.” Cambridge Review of International Affairs 25 (2): 209–230. Lowe, V. 2001. “The Politics of Law-­Making: Are the Method and Character of Norm Creation Changing?” In The Role of Law in International Politics: Essays in International Relations and International Law, edited by M. Byers, 207–226. Oxford: Oxford University Press. Merry, S. E., and P. Levitt. 2017. “The Vernacularization of ­Women’s H ­ uman Rights.” In ­Human Rights ­Futures, edited by Steven Hopgood, Jack Snyder, and Leslie Vinjamuri, 213–236. Cambridge: Cambridge University Press. Milanovic, M. 2011. Extraterritorial Application of H ­ uman Rights Treaties: Law, Princi­ples, and Policy. Oxford: Oxford University Press. —­—­—. 2018. “Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court.” In The ECHR and General International Law, edited by A. van Aaken and I. Motoc, 97–111. Oxford: Oxford University Press. Modirzadeh, N. K. 2010. “The Dark Sides of Convergence: A Pro-­civilian Critique of the Extraterritorial Application of ­Human Rights Law in Armed Conflict.” International Law Studies 86:349–410. Narayan, U. 2004. “The Proj­ect of a Feminist Epistemology: Perspectives from a Nonwestern Feminist.” In The Feminist Standpoint Theory Reader: Intellectual and Po­liti­cal Controversies, edited by S. G. Harding, 213–224. New York: Psy­chol­ogy Press Ní Aoláin, Fionnuala. 2017. “To Detain Lawfully or Note to Detain: Reflections on UK Supreme Court Decision in Serdar Mohammed.” Just Security, February 2. https://­ www​.­justsecurity​.­org​/­37013​/­detain​-­lawfully​-­detain​-­question​-­reflection​-­uk​-­supreme​ -­court​-­decision​-­serdar​-­mohammed​/­.

Skewed Vision • 91

Okimoto, K. 2011. The Distinction and Relationship between Jus Ad Bellum and Jus in Bello. Oxford: Hart. Roberts, A. 2008. “The Equal Application of the Laws of War: A Princi­ple ­under Pressure.” International Review of the Red Cross 90 (872): 931–962. —­—­—. 2013. “Subsequent Agreements and Practice: The ­Battle over Interpretive Power.” In Treaties and Subsequent Practice, edited by G. Nolte, 95–104. Oxford: Oxford University Press. Sassòli, M. 2007. “The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?” In International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein, edited by M. N. Schmitt and J. Pejic, 241–264. Leiden: Martinus Nijhoff. Sassòli, M., and L. M. Olson. 2008. “The Relationship between International Humanitarian and ­Human Rights Law Where It ­Matters: Admissible Killing and Internment of Fighters in Non-­international Armed Conflicts.” International Review of the Red Cross 90 (871): 599–627. Schmitt, C. 2008. The Concept of the Po­liti­cal. Expanded ed. Chicago: University of Chicago Press. Ser­vice Police Legacy Investigations (SPLI). n.d. https://­w ww​.­gov​.­uk​/­g uidance​/­service​ -­police​-­legacy​-­investigations. Simma, B., and D. Pulkowski. 2006. “Of Planets and the Universe: Self-­Contained Regimes in International Law.” Eu­ro­pean Journal of International Law 17 (3): 483–529. Smith, D. E. 1990. The Conceptual Practices of Power: A Feminist Sociology of Knowledge. Toronto: University of Toronto Press. Study Group of the International Law Commission. 2006. “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law.” https://­legal​.­un​.­org​/­ilc​/­documentation​/­english​/­a ​_­cn4​_ ­l682​.­pdf. Yip, K. L. 2018. “What Does the Jurisdictional Hurdle ­under International ­Human Rights Law Mean for the Relationship between International ­Human Rights Law and International Humanitarian Law?” ­Human Rights & International L ­ egal Discourse 12 (1): 99–119.

6

Who Are the Victims of Crimes against Cultural Heritage? OUMAR BA Cultural heritage and its products and pro­cesses have prompted the emergence of new norms and new actors in international law (Francioni 2004). In this global cultural landscape, social actors—­including local communities, minority groups, nongovernmental organ­izations (NGOs), and “the international community”—­ seek recognition, if not outright international ­legal status, which makes them all active participants in the transnational lawmaking pro­cess. Cultural heritage is also emerging as a shared concern and interest of humanity, with the desire for international and h ­ uman rights law to safeguard it in its material and living conditions and to protect the communities that create, perform, and maintain it (Francioni 2004, 1210). The anthropocentric approach to international law, however, places crimes against cultural property at a position less vis­i­ble than that of other crimes. From this perspective, “crimes against cultural property are addressed” only insofar as “the perpetrator’s objective [is] to harm the population [for] whom the cultural property” is valued (Abtahi 2001, 3). The establishment of a link between cultural property and the community is still the main feature of this anthropocentric—­and ethnocentric—­perspective of international law. From this vantage point, each cultural group makes a contribution to the cultural heritage of all humankind and, as such, destruction of cultural heritage

92

Who Are the Victims of Crimes against Cultural Heritage? • 93

of any social group is also an attack on humankind (Bennoune 2017, 3). The Al Mahdi case, as the first instance where an international court prosecuted an individual for the sole charge of destruction of cultural property, illustrates this perspective. Although dating as early as the nineteenth c­ entury, the pro­cess of transnational legalization of cultural heritage still raises impor­tant questions regarding the nature and qualification of its victims. Who qualifies as victims of destruction of cultural heritage in international and h ­ uman rights law? Using the Al Mahdi case as a focal point of analy­sis, this chapter shows that two categories of victims appeared in the international criminal justice system related to crimes against cultural heritage: the communities whose cultural heritage was targeted and the international community insofar as ­those cultural sites ­were listed in the United Nations Educational, Scientific and Cultural Organ­ization (UNESCO) world heritage list. In its judgment, the International Criminal Court (ICC) Chamber de­cided to grant a symbolic euro to “the international community, which [in this instance] is best represented by UNESCO” (ICC 2017, para. 107). Yet, the emergence of UNESCO as a stand-in for and representative of the international community for crimes against cultural heritage is an in­ter­est­ing recent development that has not received much scholarly attention. This article contributes to filling this gap in the lit­er­a­ture by identifying a thematic blind spot in current scholarship and policy discussions of international ­human rights: the emergence and contestation of the nature and qualification of victims of crimes of destruction of cultural heritage.

Defining Cultural Heritage From a ­human rights perspective, cultural heritage has a par­tic­u­lar significance for individuals and their collective identity as members of a community. Cultural heritage is understood as “encompassing the resources enabling the cultural identification and development pro­cesses of individuals and groups, which they, implicitly or explic­itly, wish to transmit to f­ uture generations” (Bennoune 2017, 4). The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict defines cultural property broadly so as to include “movable or immovable property of ­great importance to the cultural heritage of ­every p­ eople, such as monuments of architecture, art or history, w ­ hether religious or secular; archaeological sites; groups of buildings which, as a ­whole, are of historical or artistic interest; works of art, manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and impor­tant collections of books or archives or of reproductions of the property defined above” (UNESCO 1954, art. 1a). This definition also includes examples of buildings, “such as museums, large libraries . . . ​[and] centers containing a large amount of cultural property” (UNESCO 1954, arts. b–­c). Therefore, cultural

94 • Oumar Ba

heritage is a broader category than cultural property. An attack on one cultural property is often contingent to attacks on other forms of cultural heritage, tangible or not, such as cultural practices (Bennoune 2017, 5). In recent international criminal law procedures, investigations and prosecutions for the destruction of cultural property in times of conflict fall u­ nder the umbrella of two categories: violations of laws and customs of war, and crimes against humanity. Following the Yugo­slav wars in the 1990s, the International Criminal Tribunal for the Former Yugo­slavia (ICTY) was at the forefront for the prosecution of crimes on cultural property.1 Although the ICTY Statute does not explic­itly use the term “cultural property,” it does still refer to “institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” (ICTY Statute 1991, art. 3(d)).2 Willful destruction of such institutions falls u­ nder the category of violations of laws and customs of war. Since 1945, on the other hand, the category of international crimes that qualify as crimes against humanity has had dif­f er­ent definitions and was addressed in dif­fer­ent ways by a range of prac­ti­tion­ers. Historically, the ele­ ments of crimes against humanity included a nexus with armed conflict, targeting of a civilian population, state action or policy, or widespread or systematic action (deGuzman 2000, 337). ­Under current international law, the only ele­ments required to fall u­ nder the umbrella of crimes against humanity are (1) the existence of widespread and systematic attack and (2) a threat against a civilian population. Following on the footsteps of the ICTY, the statutes of the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) all have jurisdiction over the destruction of cultural property (Ellis 2017, 41). Additionally, the term “ethnic cleansing” entered the international law lexicon during the Yugo­slav wars, as the pro­cess aimed at not only the physical destruction of a ­people but also the erasure of their cultural symbols and memory, in other words, “a systematic assault on the soul” (Ellis 2017, 42).3 Similarly, UNESCO’s definition of intentional destruction of cultural heritage includes acts intended to compromise “its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the princi­ples of humanity and dictates of public conscience” (UNESCO 2003). Indeed, destruction of cultural heritage constitutes a violation of h ­ uman rights and is often coupled with other ­human rights violations. Therefore, adopting a ­human rights lens is an effective way for the ICC to assess the nature of the harm to the appropriate reparations in the case of destruction of cultural heritage in Timbuktu (Bennoune 2017, 12). As Patty Gerstenblith argues, a view of cultural heritage through a ­human rights lens allows us to mea­sure the extent to which cultural heritage is integrated into the lives of not only “the local community that lives among the heritage, [but also] the regional and national communities, and the world community” (2016, 389). Hence, from this perspective, intentional

Who Are the Victims of Crimes against Cultural Heritage? • 95

destruction of cultural heritage harms all ­because it deprives humanity of the rich diversity of heritage (Bennoune 2017, 12). Additionally, destruction of cultural heritage ­ought to be understood, according to UNESCO, as not merely a violation of international law ­because it also constitutes an “offence to the princi­ ples of humanity and dictates of pubic conscience” (UNESCO 2003, 17).

The ICC and the Destruction of Cultural Heritage In January 2012, a newly formed Tuareg rebel group—­the National Movement for the Liberation of Azawad (MNLA by its French acronym)—­attacked military garrisons in the Northern Malian towns, which set off a national crisis and military coup in Bamako. Shortly thereafter, the MNLA declared the in­de­pen­ dence of the Republic of Azawad, which covers two-­thirds of Malian territory. The Islamist groups Ansar Dine, Al Qaeda in the Islamic Maghreb (AQIM), and the Movement for the Unicity and Jihad in West Africa (MUJAO by its French acronym) subsequently overpowered the MNLA and took control of the Northern Mali cities of Timbuktu and Gao (Morgan 2012; Lecocq et al. 2013; Thurston and Lebovich 2013; Wing 2013). ­A fter a French-­led military operation reestablished Malian authority over the region in January 2013, the government of Mali referred the situation to the ICC, invoking the Rome Statute.4 The ICC issued a warrant for the arrest of Ahmad Al Faqi Al Mahdi on September 18, 2015, and he was transferred to The Hague a week ­later. Al Mahdi pleaded guilty and was convicted of the war crime of attacking protected objects u­ nder Article 8(2)(e)(iv) of the Rome Statute, in conjunction with attacks on ten buildings “of a religious and historical character” that included mausoleums and a mosque door, all located in Timbuktu.5 Except for one, the buildings w ­ ere listed as UNESCO World Heritage sites. ­These attacks took place in Timbuktu during the jihadist takeover of the city, between June 30, 2012, and July 11, 2012, while Al Mahdi led the Hesbah, the morality police of the Ansar Dine jihadi group (ICC 2016b, para. 17). Keeping with the anthropocentric approach to h ­ uman rights law and cultural heritage, the ICC Chamber in the Al Mahdi case constantly referred to the importance of cultural property to humanity. The prosecutor argued that such attacks are essentially an attack on cultural identity and on the ­people to which the culture belongs (Badar and Higgins 2017). At the Confirmation of Charges hearing, for instance, the prosecutor commented that “the destruction of such monuments constitutes the annihilation of structures that had survived the ravages of time and which stood as testimony to Timbuktu’s glorious past and impor­tant place in history and to its p­ eople over generations” (ICC 2016a, para. 23). In its judgment, the chamber ­adopted a similar cultural value approach by classifying the status of nine of the attacked sites as UNESCO World Heritage sites. The chamber found that destruction of such sites with World Heritage status “appear[ed] to be of par­tic­u­lar gravity as their destruction [did] not only

96 • Oumar Ba

affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also ­people throughout Mali and the international community” (ICC 2016b, para. 80). The chamber further recalled evidence given by the Malian expert who had testified that “destroying the mausoleums, to which the ­people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the ­people of Timbuktu” (ICC 2016b).

The ICC in Timbuktu: Who Are the Victims of Al Mahdi’s Acts? The UN Basic Princi­ples and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International H ­ uman Rights Law and Serious Violations of International Humanitarian Law, ­adopted by the UN General Assembly in 2006, defines victims as “persons who individually or collectively suffered harm, including physical or ­mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through . . . ​ serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term ‘victim’ also includes the immediate ­family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization” (United Nations 2006). The ICC Rules of Procedure and Evidence define victims as “natu­ral persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court” (ICC 2013). Rule 85(b) adds to the category of victims, including “organ­izations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes” (ICC 2013). Following ­these guidelines, and in the aftermath of Al Mahdi’s conviction for war crimes of destruction of cultural heritage, the Reparation Order, delivered by Trial Chamber VIII, identified the victims of Al Mahdi’s criminal acts—­ victims who deserve compensation. On August 17, 2017, Trial Chamber VIII found that Al Mahdi was liable for 2.7 million euros for (1) the damage caused by the attack of nine mausoleums and the Sidi Yahia Mosque door; (2) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of t­ hese “Protected Buildings” and to the community of Timbuktu as a ­whole; and (3) the moral harm caused by the attacks (ICC 2017). As Bennoune (2017, 25) writes, “This case offers a broad pattern of victimhood, both in terms of the number of ­people and the number of rights affected.” In accordance with the Lubanga case jurisprudence, the ICC Chamber agrees that ­there are both direct and indirect victims in the Mali case, ruling that the crime of Al Mahdi had an “impact on the ­people of Timbuktu and, more generally, on the ­people of Mali and the international community.”6

Who Are the Victims of Crimes against Cultural Heritage? • 97

In the Al Mahdi reparations judgment, the court identified three groups of victims: (1) the inhabitants of Timbuktu as the direct victims, (2) the populations of Mali in general, and (3) the international community (ICC 2017, para. 51). ­These are the three groups identified, although the scope and nature of harm suffered by each group vary. As the chamber states, “It is self-­evident that the community of Timbuktu suffered disproportionately more harm as a result of the attack on the Protected Buildings” (ICC 2017, para. 52). It is also notable that the chamber received reparation applications solely from the community in Timbuktu—­the Malian state having not submitted an application, neither did the “international community.” Markedly, even UNESCO did not submit any reparation applications, instead asserting that “the local communities . . . ​ have been the principal victims” (ICC 2017, para. 52). It is then remarkable that the chamber would consider UNESCO to be a representative of the international community in this case, as “the Chamber considers that addressing the harm suffered by the community of Timbuktu ­will also effectively address the broader harm suffered by Malians and the international community as a w ­ hole” (ICC 2017, para. 54). Moreover, Al Mahdi’s apology captures the dif­fer­ent categories that he believed his crimes to have victimized: his community in Timbuktu, his “home nation, Mali,” and the “international community.” Al Mahdi said in court, Ladies and gentlemen, it is with deep regret and with ­great pain I had to enter a guilty plea and all the charges brought against me are accurate and correct. I am r­ eally sorry. I am r­ eally remorseful and I regret all the damage that my actions have caused. I regret what I have caused to my ­family, my community in Timbuktu, what I have caused my home nation, Mali, and I’m r­ eally remorseful about what I had caused the international community as a ­whole. My regret is . . . ​directed particularly to the generations, the ancestors of the holders of the mausoleums that I have destroyed. . . . ​I would like to seek the ­pardon of the ­whole ­people of Timbuktu. (ICC 2016c)

The International Community as a Victim Locating the International Community An agreement on a set a rules, norms, princi­ples, and laws forms the basis for an international community. Therefore, a minimum required homogeneity is needed for the international community to emerge (Fassbender 1998, 566). Obviously, this ­doesn’t mean that the rules and norms are not ­violated, nor the princi­ples contested. However, the expectation, for instance, that the United Nations or the “international community” take action when faced with egregious violations exemplifies the existence of a rule-­based community. This implies that if an international community must exist, it requires a number of interests that

98 • Oumar Ba

are common to its members and a certain set of shared values, princi­ples, and procedures. In that regard, the UN Charter may be viewed as the constitution of the international community if we accept the premise that a constitution may apply to po­liti­cal entities beyond the nation-­state (Fassbender 1998, 529). Yet, an international community cannot exist without institutions able to represent it. The UN, as the international organ­ization with the largest scope and mandate, is the primary institutional representative of the international community. As the UN Charter states, the United Nations’ purpose is, inter alia, to “maintain international peace and security,” to “develop friendly relations among nations,” and to “achieve international cooperation in solving international prob­lems of an economic, social, cultural, or humanitarian character.” The UN has an executive branch, a judicial body—­the International Court of Justice (ICJ)—­with a broad mandate, and the General Assembly that represents its legislative body. As Antonio Cassese (1986, 159) argues, “the UN ultimately acts in the interest of and on behalf of the w ­ hole world community, of which it is the legitimate representative.” ­These days, as Bruno Simma and Andreas Paulus assert, “the [UN] Charter has almost universally been recognized as the constitutional document of the international community of states” (1998, 274). This explains why “international community” is often used interchangeably with the United Nations. The term “international community,” however, merits further scrutiny from a variety of traditions of thought in international law, politics, and ethics. The concept is found repetitively in UN General Assembly and Security Council resolutions, other international conferences, and so on. The ICJ even made reference to “the international community,” for instance, in the cases regarding U.S. hostages in Tehran (ICJ 1980).7 The Vienna Convention on the Law of Treaties defines jus cogens—­peremptory norms of general international law—as norms “accepted and recognized by the international community of States as a w ­ hole.”8 Yet the notion of international community also serves within international politics as a murky concept upon which one can lay blame for moral and po­liti­cal failures, such as the response to the Rwanda genocide for instance. During his visit to Rwanda in 1998, President Clinton said that the “international community, together with nations in Africa, must bear its share of responsibility for this tragedy, as well” (Bennet 1998). This is a not so subtle way to avoid taking responsibility for U.S. actions but also recognizing the failures of the United Nations in the face of what Clinton called “the most intensive slaughter in this blood-­ filled ­century we are about to leave” (Bennet 1998). In May 1994, UN Secretary-­ General Boutros-­Ghali called the ongoing slaughter in Rwanda a “genocide” and condemned states for refusing to send troops t­ here: “It is a failure not only for the United Nations; it is a failure for the international community. And all of us are responsible for this failure. Not only the g­ reat powers but the African powers, the nongovernmental organ­izations, all the international community. It is a

Who Are the Victims of Crimes against Cultural Heritage? • 99

genocide which has been committed. More than 200,000 ­people have been killed and the international community is still discussing what ­ought to be done” (Lewis 1994). By invoking the international community, Boutros-­Ghali, Clinton, and ­later Kofi Annan deflect from their personal responsibility and engage in an attempt of “demo­cratizing the blame” (Barnett 2002, 154). The term “international community,” then, serves as a foggy institution that shoulders the blame for not acting to stop the Rwandan genocide and other atrocities. Beyond being the culprit or villain in failing to stop or properly respond to atrocity crimes, the international community is also oftentimes described as a victim of t­ hose crimes.

The International Community as a Victim The ICC stresses the importance of cultural heritage to individual groups and to the international community. The chamber states that “cultural heritage is impor­tant not only in itself, but also in relation to its h ­ uman dimension. Cultural property also allows a group to distinguish and identify itself before the world community” (ICC 2017, para. 16). In relation to world heritage, however, the chamber affirms that “world cultural heritage is a most impor­tant category. Greater interest vested in an object by the international community reflects a higher cultural significance and a higher degree of international attention and concern” (ICC 2017, para. 17). This also implies that the international community—­mainly UNESCO in this instance—­decides which artifacts are of higher importance and deserve more attention and concern. At the Al Mahdi trial, the inclusion of the “international community” in the list of victims is meant, as the chamber argues, to stress “the specific nature of the crime for which Mr Al Mahdi was convicted. The destruction of cultural heritage erases part of the heritage of all humankind” (ICC 2017, para. 53). However, a­ fter emphasizing the importance of the international community in the crimes committed by Al Mahdi, the chamber curiously states that addressing the harms caused to the Timbuktu community would adequately address any broader harm to the Malian and international community (ICC 2017, para. 54). This certainly denotes that, from the chamber’s viewpoint, although the Timbuktu community, the Malian state, and the international community have all been victimized, the first group of victims can also represent both the Malian state and the international community. The chamber subsequently l­imited its analy­sis only to the first group of victims. However, as Sophie Starrenburg notes, “one won­ders why—if this is what the Chamber wished to achieve in the first place—it found it necessary to jump through the hoop of identifying the international community as a victim” (Starrenburg 2017). One can infer from this ruling only that the court did not want to engage in a discussion on how the Malian population at large and the international community ­were victimized by the destruction of cultural heritage in Timbuktu, and how to rationalize the reparation adjudicated to t­ hese two groups.

100 • Oumar Ba

UNESCO as the Representative of the International Community In ­matters of international crimes against cultural heritage, UNESCO personifies the international community. In its submission, UNESCO informed the ICC Chamber that it had spent “2.53 million euro in rebuilding Timbuktu’s mausoleums and rehabilitating the mosques and libraries of manuscripts” (ICC 2016d, para. 12). Interestingly, in accordance with the ICC Rules of Procedure and Evidence, the court ordered that the Malian state and UNESCO each be awarded a symbolic amount of one euro for the harm suffered respectively by the Malian state and the international community (ICC 2013). This act brings into question w ­ hether UNESCO can in fact qualify as victim in the Al Mahdi case since no one would argue that the monuments belonged to the organ­ization. Therefore, UNESCO is included as a victim only through bifurcation, as a representative of the international community, which arguably is victimized by the destruction. The status of nine of the destroyed edifices as World Heritage sites certainly played a role in why they w ­ ere targeted for destruction in the first place (Casaly 2016). The World Heritage status of ­these monuments, according to the chamber, reflects “higher cultural significance and a higher degree of international attention and concern” (ICC 2017, para. 17). The jihadist leaders who overtook Timbuktu in 2012 explained the destruction of the sites on religious grounds, although obviously their high symbolic value as UNESCO World Heritage sites also explains why they w ­ ere targeted, knowing that countless other cultural and religious edifices in Northern Mali w ­ ere not attacked. One of the Islamist leaders said, “Not a single mausoleum ­will remain in Timbuktu, Allah ­doesn’t like it. . . . ​We are in the pro­cess of smashing all the hidden mausoleums in the area” (Al Jazeera 2012). Ould Hamaha, another leader of Ansar Dine, explained the reasons for the destruction of the Sufi shrines as follows: “It’s forbidden by Islam to pray on tombs and ask for blessings. . . . ​We w ­ ill not let the younger generation believe in shrines as God, regardless of what the U.N., UNESCO, International Criminal Court or ECOWAS . . . ​have to say. We do not recognize ­these organ­izations. The only ­thing we recognize is the court of God, Shari’a” (Cavendish 2012). The symbolic value of Timbuktu and its edifices and their UNESCO World Heritage listing is therefore apparent to the Islamists. The destruction of the Bamiyan Bud­d has was an act of defiance ­toward the United Nations and the international community in response to the 1999 and 2000 sanctions against the Taliban government (Francioni and Lenzerini 2003; Gerstenblith 2005). Moreover, the UNESCO secretary-­general, his envoy in Kabul, and the UN secretary-­general all appealed to the Taliban to not proceed with the planned destruction of the statues. Yet adding cultural sites to the World Heritage List raises their profile and makes them potential targets for vari­ous perpetrators, which is just one of the many pitfalls of UNESCO listings. In any case, the UNESCO listing pro­ cess is highly “politicized and biased t­owards par­tic­u­lar forms of heritage”

Who Are the Victims of Crimes against Cultural Heritage? • 101

(Starrenburg 2017). This means that inclusion in the UNESCO World Heritage List is by no means indicative of the most impor­tant cultural sites around the world.9 Furthermore, beyond the symbolic value of the Al Mahdi arrest, the trial in The Hague, and the outcry of the international community, complex po­liti­cal and philosophical questions remain (Joy 2016). For instance, crimes against cultural heritage have a long history in Mali, and elsewhere, ranging from looting of archaeological sites to the illicit art market. Destruction or looting of cultural heritage—­even when classified as World Heritage—in and of itself does not necessarily warrant global outcry or ICC intervention. Therefore, the international attention garnered by the destruction of the protected buildings in Timbuktu must be viewed in the context of transnational jihadism and the global war on terror.

The Local (and National) Community as Victims It is clear that ­those most affected by the destruction of the protected buildings ­were the inhabitants of Timbuktu. The ICC Chamber notes that “the loss of the Protected Buildings affected the entire community of Timbuktu” (ICC 2017, para. 62). The chamber also noted that the protected buildings belonged to the entire community and their loss was felt by the entire community of Timbuktu. Therefore, the chamber conceded that collective reparations w ­ ere the most appropriate modality (ICC 2017, para. 67). To be sure, the nine mausoleums and the Sidi Yahya mosque that ­were attacked represented impor­tant relevance to the local, national, regional, and international cultural heritage. Timbuktu residents told the ICC-­appointed cultural experts, “we cannot live without the saints”; “our spirits are [in the mausoleums]”; “our existence and all that we have in this life is due to the mausoleums” (Bennoune 2017, 19). Places not only of prayer but also of pilgrimage, the mausoleums ­were visited by populations—­both Muslims and non-­Muslims—­from faraway places, which also benefitted the city of Timbuktu and the region in terms of tourism—­religious or other­wise—­and commerce. Pilgrims would come to say prayers and take sand from the mausoleums for gifts and donations. It is impor­tant to note thought that while ­these saints are venerated, they are not worshipped. As a Timbuktu resident said, “­These are places of solace” (Bennoune 2017, 21). Al Mahdi was convicted for his involvement in the destruction of the Sidi Yahya mosque door, for instance, a door believed to not have been opened for five hundred years and which needed to remain closed ­until the Last Judgment Day. One victim stated, “My faith is shattered. My ­family fled. . . . ​I lost every­thing and all my faith” (ICC 2017, para. 85). Once the ICC Chamber determined the categories of victims of Al Mahdi’s war crimes of destruction of cultural heritage, the next step was to decide ­whether and how reparations w ­ ere to be allocated (ICC 2017, paras. 135–148). The court made a determination regarding both individual and collective reparations—­ individual reparations w ­ ere for t­ hose whose livelihood directly depended upon

102 • Oumar Ba

the protected buildings or who suffered ­mental pain from the destruction of their ancestors’ burial grounds. The rest of the reparations w ­ ere collective in nature. However, given that the edifices that ­were destroyed have already been restored by UNESCO, the court believed that the collective reparations should focus on ensuring that such destruction was not repeated. The court de­cided on other symbolic reparations as well, such as ordering that the ICC Registry “produce an excerpt of the video of Mr. Al Mahdi’s apology and post it on the Court’s website with the corresponding transcript translated into the primary languages spoken in Timbuktu” (ICC 2017, para. 71). The chamber also suggested symbolic mea­sures, such as a “memorial, commemoration or forgiveness ceremony” (ICC 2017, para. 90). Victims w ­ ere also asking for compensations for the economic effects of the destruction of their livelihood (ICC 2017, para. 73). The guardians of the mausoleums, the maçons, tasked with maintaining them and p­ eople whose business could not exist without the protected buildings explained that their livelihood depended directly on the sites. O ­ thers noted that loss of tourism and economic activity harmed their livelihood. However, “the Chamber award[ed] individual reparations for consequential economic loss only to ­those whose livelihoods exclusively depended upon the Protected Buildings” (ICC 2017, para. 81).

Conclusion The Al Mahdi case represents a watershed moment in international criminal justice, as the first ever case before an international court wherein the defendant was solely charged with the crime of destruction of cultural heritage. Although destruction of cultural heritage during conflict is not a new phenomenon, it has attracted increased attention and outcry in the past few de­cades as fundamentalist groups have repeatedly taken advantage of the mass media to increase the shock value of ­these acts. Given the symbolic value that Timbuktu represents in the global imagination in addition to the World Heritage site status of the monuments that ­were targeted for destruction in 2012, the ICC became the focal point on how the international community was to address such willful destruction of cultural heritage as war crimes. This raises questions as to whom the victims of destruction of cultural heritage actually are. The judgment and reparation order in the Al Mahdi case identifies three groups of victims: the residents of Timbuktu, the Malian state, and the international community, represented by UNESCO. Yet UNESCO is a victim in this case only through bifurcation, as a representative of the international community, due to the higher cultural significance of the sites and the higher degree of international attention and concern. The identification and qualification of ­these dif­fer­ent kinds of victims of the crimes of destruction of cultural heritage has implications on which ­legal, po­liti­cal, and social redress and remedies are appropriate. It also brings forth the role and place of the

Who Are the Victims of Crimes against Cultural Heritage? • 103

individuals and local communities as victims of ­these crimes from both international, humanitarian, and ­human rights law perspectives and the policies enacted to restore and protect the cultural heritage from further attacks.

Notes 1 The ICTY’s inclusion of crimes against cultural property was a major addition in strengthening international instruments in protecting cultural property, identity, and history in times of armed conflict. See, for instance, Abtahi (2001). 2 United Nations International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugo­slavia Since 1991, Updated Statute of the International Criminal Tribunal for the Former Yugo­slavia (Sept. 2009), art. 3(d). 3 Examples include the attacks on the Old Town of Dubrovnik, the Mostar Bridge, and the National Library of Sarajevo. 4 Rome Statute of the International Criminal Court, ­adopted July 17, 1998, art. 14, UN Doc. A/CONF.183/9 (1998), 2187 UNTS 90 (entered into force July 1, 2002). See also Referral Letter by the Government of Mali, https://­w ww​.­icc​-­cpi​.­int​/­NR​ /­rdonlyres​/­A 245A47F​-­BFD1​-­45B6​-­891C​-­3BCB5B173F57​/­0​/­ReferralLetter​Mali​ 130712​.­pdf. 5 The Rome Statute’s art. 8(2)(b)(ix) refers to “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.” 6 Thomas Lubanga Dyilo was a Congolese rebel leader and the first person ever to be convicted by the ICC. He was found guilty of enlisting child soldiers and sentenced to fourteen years in prison. 7 Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ 43, para. 92 (May 24) (statement by the court): “The Court . . . ​ draw[s] the attention of the entire international community . . . ​to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine [a carefully constructed edifice of law], . . . ​the maintenance of which is vital for the security and well-­being of the . . . ​international community.” 8 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), 1155 UNTS 331 (entered into force January 27, 1980) (emphasis added). 9 ­There is a North-­South imbalance in the World Heritage List. For instance, countries such as Rwanda and Liberia have no sites listed. The listing pro­cess is expensive and requires management and resources that many poor countries often lack. Moreover, states use the listing for their own interests, such as international prestige, tourism, po­liti­cal motives, e­ tc. Additionally, the listing can have negative repercussions on local populations. See Maurel (2017).

References Abtahi, Hirad. 2001. “The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugo­slavia.” Harvard H ­ uman Rights Journal 1 (14): 1–32. Al Jazeera. 2012. “Mali Fighters Destroy More Timbuktu Tombs.” December 23.

104 • Oumar Ba

Auwera, S. 2013. “UNESCO and the Protection of Cultural Property during Armed Conflict.” International Journal of Cultural Policy 19 (1): 1–19. Ba, O. 2020. “Contested Meanings: Timbuktu and the Prosecution of Destruction of Cultural Heritage as War Crimes.” African Studies Review 63 (4): 743–762. Badar, M. E., and N. Higgins. 2017. “Discussion Interrupted: The Destruction and Protection of Cultural Property ­under International Law and Islamic Law—­The Case of Prosecutor v. Al Mahdi.” International Criminal Law Review 17 (3): 486–516. Barnett, M. 2002. Eyewitness to a Genocide: The United Nations and Rwanda. Ithaca, NY: Cornell University Press. Bennet, J. 1998. “Clinton in Africa: The Overview; Clinton Declares U.S., with the World, Failed Rwandans.” New York Times, March 26. Bennoune, K. 2017. “Brief.” Prosecutor v. Al Mahdi, ICC-01/12-01/15–214, April 27. Casaly, P. 2016. “Al Mahdi before the ICC: Cultural Property and World Heritage in International Criminal Law.” Journal of International Criminal Justice 14 (5): 1199–1220. Cassese, A. 1986. International Law in a Divided World. Oxford: Oxford University Press. Cavendish, J. 2012. “Destroying Timbuktu: The Jihadist Who Inspires the De­mo­li­tion of the Shrines.” Time, July 10. de Guzman, M. M. 2000. “The Road from Rome: The Developing Law of Crimes Against Humanity.” ­Human Rights Quarterly 22 (2): 335–403. Ellis, M. S. 2017. “The ICC’s Role in Combatting the Destruction of Cultural Heritage.” Case Western Reserve Journal of International Law 49 (1): 23–62. Fassbender, B. 1998. “The United Nations Charter as Constitution of the International Community.” Columbia Journal of Transnational Law 36:529–619. Francioni, F. 2004. “Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity.” Michigan Journal of International Law 25 (4): 1209–1228. Francioni, F., and F. Lenzerini. 2003. “The Destruction of the Bud­d has of Bamiyan and International Law.” Eu­ro­pean Journal of International Law 14 (4): 619–651. Gerstenblith, P. 2005. “From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st ­Century.” Georgetown Journal of International Law 37 (2): 245–351. —­—­—. 2016. “The Destruction of Cultural Heritage: A Crime Against Property or a Crime Against P ­ eople?” John Marshall Review of Intellectual Property Law 15:336–393. International Court of Justice (ICJ). 1980. “Case Concerning United States Diplomatic and Consular Staff in Tehran” (U.S. v. Iran, May 24. International Criminal Court (ICC). 2013. “Rules of Procedure and Evidence.” https://­w ww​.­icc​-­cpi​.­int​/­iccdocs​/­pids​/­legal​-­texts​/­rulesprocedureevidenceeng​.­pdf. —­—­—. 2015. “Charge Brought by the Prosecution Against Ahmad Al Faqi Al Mahdi.” Prosecutor v. Al Mahdi, ICC-01/12-01/15-70-­A nxA-­Corr, December 17. —­—­—. 2016a. “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Opening of the Confirmation of Charges Hearing in the Case Against Mr. Ahmad Al-­Faqi Al Mahdi.” March 1. —­—­—. 2016b. “Judgment and Sentence.” Prosecutor v. Al Mahdi, ICC-01/12-01/15-171, September 27. —­—­—. 2016c. “Transcripts of Hearing: Statement Made by Mr. Al Mahdi.” Prosecutor v. Al Mahdi, ICC-01/12-01/15-­T-4-­Red-­ENG, August 22.

Who Are the Victims of Crimes against Cultural Heritage? • 105

—­—­—. 2016d. “UNESCO Amicus Curiae Observations.” Prosecutor v. Al Mahdi, ICC-01/12-01/15-194, December 2. —­—­—. 2017. “Reparations Order.” Prosecutor v. Al Mahdi, ICC-01/12-01/15, August 17. Joy, C. 2012. The Politics of Heritage Management in Mali: From UNESCO to Djenné. London: Routledge. —­—­—. 2016. “The Mali Cultural Destruction Trial at the ICC Poses a Moral Dilemma.” Apollo, September 6. Lecocq, B., et al. 2013. “One Hippopotamus and Eight Blind Analysts: A Multivocal Analy­sis of the 2012 Po­liti­cal Crisis in the Divided Republic of Mali.” Review of African Po­liti­cal Economy 40 (137): 343–357. Lewis, P. 1994. “Boutros-­Ghali Angrily Condemns All Sides for Not Saving Rwanda.” New York Times, May 26. Maurel, C. 2017. “Whose World Heritage? The Prob­lem with UNESCO’s Famous List.” Equal Times, July 20. Morgan, A. 2012. “The ­Causes of the Uprising in Northern Mali.” Think Africa Press, February 6. Schabas, W. 2012. Unimaginable Atrocities: Justice, Politics and Rights at the War Crimes Tribunals. Oxford: Oxford University Press. Simma, B., and A. Paulus. 1998. “The ‘International Community’: Facing the Challenge of Globalization.” Eu­ro­pean Journal of International Law 9 (2): 266–277. Starrenburg, S. 2017. “Who Is the Victim of Cultural Heritage Destruction? The Reparations Order in the Case of the Prosecutor v. Ahmad Al Faqi Al Mahdi.” EJIL: Talk!, August 25. Thurston, A. 2013. “­Towards an ‘Islamic Republic of Mali?’ ” Fletcher Forum of World Affairs 37 (2): 45–66. Thurston, A., and A. Lebovich. 2013. “A Handbook on Mali’s 2012–2013 Crisis.” Institute for the Study of Islamic Thought in Africa Working Paper Series No. 13-001. UNESCO. 1954. “Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention.” May 14. —­—­—. 2003. “Declaration Concerning the Intentional Destruction of Cultural Heritage” (UNESCO Doc. 38 C/25). October 17. United Nations. 2006. “General Assembly Resolution 60/147” (UN Doc. A/RES/60​ /147). March 21. Wing, S. 2013. “Making Sense of Mali.” Foreign Affairs, January 20.

7

Challenging the ­Legal Bound­aries of Genocide The War on Drugs in the Philippines DAHLIA SIMANGAN Anticrime hardliner Rodrigo Roa Duterte was elected president of the Philippines in June 2016. His twenty-­two-­year stint as the mayor of Davao City, a major city in the southern island of Mindanao and once notorious for its lawlessness and illegal drugs, proved attractive to the Philippine electorate. Although he was considered a po­liti­cal outsider, his antielite and antiestablishment rhe­toric resonated well with the sixteen million voters disenchanted by the liberal po­liti­cal system’s failure to sustain socioeconomic development and maintain law and order. The crime rate in the Philippines has, indeed, gone down since Duterte’s election. However, closer examination reveals that the crime rate had already been on a downward trend even before his election, while the number of murder cases has increased since Duterte launched his nationwide campaign against illegal drugs (ABS-­CBN News 2016b; Macapagal 2018). The h ­ uman rights rec­ord in the Philippines is replete with challenges and violations even before Duterte’s election. The ambivalence of the ­human rights situation in the country springs from a combination of the twenty-­one-­year authoritarian rule of former president Ferdinand Marcos and the liberal experiment in the years following the 1986 popu­lar demonstrations that removed him 106

Challenging the ­Legal Bound­aries of Genocide • 107

from office. The Philippines ­later acceded to several international agreements related to ­human rights protection, including the Rome Statute of the International Criminal Court (ICC). H ­ uman rights have been codified into the constitution and national laws, but their implementation has often fallen short (Pangalangan 2011). While po­liti­cal space has been freed, and basic international ­human rights standards have been met, h ­ uman rights abuses have continued, especially surrounding the electoral pro­cess and in the rural areas of the country (e.g., H ­ uman Rights Watch 2016; Muyot 1992; Regilme 2016; Sales 2009; Weissman 1994). In more recent years, however, h ­ uman rights violations have become more blatant, especially with brazen endorsement by Duterte and his supporters. For a country with a weak rule of law and a high poverty rate, a leader with an iron fist promising change and stability was a welcome prospect, even at the cost of ­human rights. It is in this context that the “war on drugs,” the cornerstone of Duterte’s policies, has enjoyed domestic support while receiving international condemnation. The war on drugs in the Philippines is more than a security issue. It reflects the global decline in basic civil and po­liti­cal rights, manifested in the extermination and harassment of minority and other disenfranchised groups. The popularity of Duterte’s drug policies among the Filipino public also echoes the increasing discontent with the liberal international order (Ikenberry 2018). The normative authority of liberal values, such as ­human rights, seems to have been undermined despite the developments in the international ­human rights regime. ­Human rights are at risk while international l­egal instruments still strug­gle to respond to mass atrocities, including genocide and crimes against humanity. This chapter draws on scholarly debates on what constitutes genocide to shed light on the shortcomings of adjudicating crimes against humanity within the international h ­ uman rights regime. Th ­ ere have been commentaries, albeit sparse, calling the war on drugs in the Philippines an act of genocide (e.g., Goel 2016; Szalavitz 2016). Despite Duterte’s drug war not meeting the conventional definition, this chapter demonstrates how it satisfies the stages of genocide developed by Gregory H. Stanton (2006), thereby challenging the ­legal bound­aries of genocide (see Simangan 2018 for a detailed discussion of t­ hese stages). This chapter concludes with an emphasis not just on the l­egal accountability of perpetrators but also on the means of protecting the rights and lives of p­ eople in legally contested cases of genocide and other mass atrocities.

The ­Legal Bound­aries of Genocide Genocide as a punishable crime emerged in the context of the Nuremberg ­trials ­after World War II. Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the Genocide Convention) defines genocide as “acts committed with intent to destroy, in w ­ hole or in part, a national, ethnical, racial or religious group” (United Nations 1948, 280).

108 • Dahlia Simangan

This definition of genocide, however, is a product of po­liti­cal compromise (Ratner 2007). Raphael Lemkin (1944, 80), the Polish ­lawyer who first formulated the conceptual and ­legal under­pinnings of the term, defined it as “a coordinated plan of dif­f er­ent actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.” This definition is intentionally capacious and generic to demonstrate the complexity of the crime and cover e­ arlier and broader acts of genocide other than the Holocaust (McDonnell and Moses 2005; Moses 2011). Lemkin’s ­earlier articulation stands in contrast to the restrictive yet imprecise one ­adopted in the Genocide Convention (Schabas 2007). His definition includes po­liti­cal, social, cultural, economic, religious, and moral techniques, while the ­legal definition was ­limited to physical and biological destruction for the purpose of international legislation (Moses 2010). The Genocide Convention was also too narrow to include victims who may not belong to a national, ethnical, racial, or religious group. Genocide is a po­liti­cally and intellectually contested concept. Over the years debates over its definition have revolved around perpetrators’ intent, the group identity of victims, the threshold number of victims, and methods of destruction (Gallagher 2013). ­Legal, historical, and so­cio­log­i­cal arguments suggest ­either a broad or narrow application of the concept. Several scholars have criticized the conservative approach to all or some of the components of the Genocide Convention, arguing for a broader understanding of genocide (e.g., Kiernan 2007; Shaw 2015). ­Others see the importance of a more judicial interpretation of the term for adjudicating international crimes and conceptual clarity (e.g., Schabas 2004; Simon 1996). However, this preoccupation with definition instead of the act itself is a disser­vice to the victims of genocide. In international politics t­ here is also a danger of reducing the ideational power and l­ egal responsibilities attached to the term if it is frequently invoked but not acted upon (Glanville 2009). In an intellectual exercise the “conceptual stretching” of terms such as genocide may unintentionally produce vague and amorphous conceptualizations that do not help to confront prob­lems based on empirical evidence (Sartori 1970). The discussion in this chapter, however, departs from the “definitionalism,” or unnecessarily extended debates on the particularities of the definition of genocide, that creates emotional distance between genocide scholars and ­those who are at the receiving end of genocidal acts (Charny 1994). The Genocide Convention was the first h ­ uman rights treaty a­ dopted by the United Nations General Assembly a­ fter previous codification of crimes against humanity during peacetime, as seen in the aftermath of the Nuremberg t­ rials proved inadequate (Schabas 2007). Since the ratification of the Convention in 1951 the UN Security Council has established ad hoc tribunals to try perpetrators of war crimes, crimes against humanity, and genocide. However, the indictment of the perpetrators from the three legally recognized cases of genocide (i.e., Cambodia, Rwanda, and Bosnia) has been slow, and only a handful of them have been convicted so far (Burns 2018). Furthermore, the l­egal utility of the

Challenging the ­Legal Bound­aries of Genocide • 109

concept has been weakened by the failure of the international community to prevent or halt genocide and other contested cases of genocide (DeWeese 1998; Maddox 2015) as enforcement of the Genocide Convention still largely depends on the existing global power structure. Instead of expanding the l­egal definition of genocide, the international community has chosen to broaden the view of crimes against humanity (Schabas 2010). The concept of crimes against humanity, in contrast to that of genocide, has evolved u­ nder international customary law and through the jurisdictions of international courts. The 1998 Rome Statute defines crimes against humanity as “widespread or systematic [attacks] directed against any civilian population” (International Criminal Court 2011, art. 7.1). Murder, extermination, deportation, imprisonment, torture, rape and other grave forms of sexual vio­lence, persecution, enforced disappearance, apartheid, and other inhumane acts of a similar character can be considered a crime against humanity. Unlike genocide, crimes against humanity target any civilian population instead of a par­tic­u­lar group. Also unlike genocide, crimes against humanity are yet to be codified into a convention or an internationally binding treaty. This gap means that jurisdiction over crimes against humanity depends on individual states’ voluntary incorporation of the Rome Statute, including its robust and detailed definitions of such crimes, into their national laws (Murphy 2015). The Rome Statute established the ICC as a body to exercise jurisdiction over certain crimes against humanity when domestic courts are unwilling or unable to do so. States can choose to withdraw from or not to ratify the statute but without consequence for ongoing investigations. The shortcomings of l­egal enforcement, coupled with the unresolved definitional debates on genocide, have produced typologies and classifications for crimes that can be considered genocide but are not covered by the Genocide Convention (e.g., Chalk and Jonassohn 1990; Charny 1994; Harff and Gurr 1988; Scherrer 1999). ­These conceptual developments take into consideration types of genocidal intentions, techniques, and outcomes. First is the concept of the “genocidal massacre” (Kuper 1981) or “partial genocide” (Melson 1992), which is smaller in scale in terms of the number of victims and techniques of extermination. Second is “monopolistic genocide” or “domestic genocide,” targeted at an internal “­enemy” as a “means of shaping the structure and design of the state and society” (Smith 2000, 26). In this case the target group may belong to a par­tic­ u­lar social or economic class (Kuper 1981). Third is the role of the state in the genocidal pro­cess (Gallagher 2013), particularly in legitimizing its existence (Fein 1979). Based on some of ­these existing typologies, Feierstein (2014) developed the concept of “modern genocide,” which Ratner (2007, 589) ­earlier hinted at as an alternative vocabulary for more recent or con­temporary genocidal practices without ignoring the “special evil of the Holocaust.” Feierstein (2014, 45) defined modern genocide as “any genocidal social practice related to the destruction of ­human group since the late fifteenth c­ entury.” Although he emphasized the

110 • Dahlia Simangan

perpetrator role of Eu­ro­pean settlers in his definition, the concept of modern genocide, as well as partial genocide, domestic genocide, and genocide for the purpose of state legitimization, resonates with the war on drugs in the Philippines.

The Stages of Genocide in Duterte’s Drug War The crucial components of a genocidal act include the group identity of victims, perpetrators’ intent to destroy, and the method of destruction. It is contentious to place the Philippine drug war ­under the conventional or ­legal definitions of genocide ­because the victims, in this case drug suspects, are not a national, ethnic, racial, or religious grouping. It can be argued that it is a crime against humanity rather than an act of genocide (Gallagher, Raffle, and Maulana 2019) b­ ecause of the lack of a defined group identity of the victims. However, Duterte and his supporters collectively label drug suspects as adik (a derogatory term for drug users), not h ­ uman, good for nothing, criminals, rapists, and murderers, among ­others. Using a critical genocide studies lens (Moses 2008), the adik qualifies as a victim of genocide in the specific history and context of the Philippines. The target group can be defined by the perpetrators of genocide (Chalk and Jonassohn 1990; Hinton 2012), who are using po­liti­cal rather than racial logics to impose security imperatives and incite fear through preemptive, collective punishment of potential threats (Moses 2011). Further, the intent and method are pre­sent in the Philippine drug war, and the following discussion describes t­ hese components. Classification is the first stage of genocide. It employs categories to distinguish “us” from “them” (Stanton 2016). Examples of classification are the distinctions between German and Jew in Nazi Germany and Hutu and Tutsi in Rwanda. Classification, however, is not ­limited to racial or ethnic groups; it can also be applied to social and po­liti­cal groups. In Cambodia, for instance, the Khmer Rouge regime killed the intellectuals and ­those suspected of po­liti­cal dissent. As mentioned ­earlier, in the Philippines the victims are classified as drug addicts, criminals, rapists, and murderers. To justify the war on drugs Duterte and his administration distinguish the “bad” adik from the “good” law-­abiding citizens. Symbolization is the second stage of genocide. It is the assignment and active application of classification to visually differentiate “us” from “them.” Nazis made Jews wear armbands with a yellow star, and the Khmer Rouge regime made some ­people wear blue scarves. In the Philippines symbolization takes a dif­f er­ent form. Victims are often found in the streets with cardboard signs on top of or next to their bodies (Lamb 2017). Common labels on t­ hese cardboard signs are “I am a drug pusher. Do not be like me,” serving as a threat to spectators. ­These visuals have become everyday news in Philippine media, populated by undignified images of slain victims. According to Stanton symbolization is often harmless ­unless it is coupled with dehumanization.

Challenging the ­Legal Bound­aries of Genocide • 111

Dehumanization is the third stage of genocide. In the Philippines the dead are found on streets and roadsides, labeled with cardboard signs as described ­earlier, and sometimes with their f­ aces wrapped in masking tape. This method of symbolization and dehumanization “reduces the body to an object as a vehicle to carry po­liti­cal messages” (Reyes 2016, 111). Duterte and some members of his administration have publicly expressed their rejection of drug users’ humanity and h ­ uman rights, claiming that they are not h ­ uman or are less h ­ uman than law-­abiding citizens. For example, in response to condemnation and accusations of crimes against humanity, then Philippine justice secretary Vitaliano Aguirre II, a vocal ally of the president, told reporters, “How can that be when your war is only against drug lords, drug addicts, drug pushers? You consider them [­human]? No. I believe not” (Agence France-­Presse 2017). Organ­ization is the fourth stage of genocide. “Genocide is always or­ga­nized, usually by the state, often using militias to provide deniability of state responsibility” (Stanton 2016, no. 5). The Philippine drug war is state-­sponsored as it is the cornerstone of Duterte’s policies. It is also highly or­ga­nized, for which Duterte mobilizes both the police and the military. As soon as he took office the police released a “watch list” of drug suspects, containing anywhere from six hundred thousand to a million names (Symmes 2017). Duterte also encourages nonstate apparatuses, such as vigilantes and hired killers, to kill individuals allegedly involved with illegal drugs. “If you know of any addicts, go ahead and kill them yourself as getting their parents [to] do it would be too painful,” he said in a public speech just ­a fter his inauguration (Worley 2016). While Duterte dismisses vigilante killings as a myth, eyewitness reports of killings and even confessions by hired killers prove other­wise (Bouckaert 2017). Polarization is the fifth stage of genocide. This happens when perpetrators use propaganda, hate speech, and laws or decrees to divide society (Stanton 2016), therefore allowing them to continue their activities amid a lack of public consensus. Duterte’s antidrug campaign hinges on penal pop­u­lism in the form of exclusion and divisiveness (Curato 2016) by exploiting “public anxiety about crime and public resentment t­ oward offenders” based on inadequately informed public opinion (Roberts et al. 2003, 3). Th ­ ese public sentiments are valid, but Duterte instrumentalizes them instead of addressing the root c­ auses of crime and identifying the sources of public emotions. Duterte’s promise to eliminate crimes in the Philippines garners support from t­ hose who fail to screen the reliability of his policies. Polarization can be manifested in both mainstream and social media. ­There have been allegations that Duterte mobilizes a group of online trolls to push his policies (Caruncho 2016; Roberson and Pratt 2017), pick fights with critics, and propagate fake news (Lamble and Mohan 2016; Ressa 2016). Duterte also appointed Mocha Uson, a Filipino singer, dancer, and blogger, as assistant secretary of the Presidential Communications Operations Office to reciprocate her support during the presidential campaign. Uson and her fellow Die-­Hard Duterte

112 • Dahlia Simangan

Supporters, as they call themselves, brandish their legitimacy and representativeness based on their claim of a huge following on social media wherein they pre­ sent an illusory sense of nationalism by glorifying Duterte as “­father” and “protector.” Uson has vowed to oppose the mainstream media for being critical of Duterte’s policies but, in several instances, has become the center of fake news controversies (Vera Files 2018). If ­these allegations are true, and with Uson’s appointment as an example, active and intentional polarization of public sentiments about the drug war can be considered state-­sanctioned. Preparation is the sixth stage of genocide and involves the previous five stages. Some examples of preparation are the use of euphemisms to downplay grave ­human rights violations, indoctrination of fear into the population using hateful rhe­toric and propaganda, mobilization of weapons and troops or militias, justification based on self-­defense, and the creation of po­liti­cal pro­cesses as tools to advance a certain agenda (Stanton 2016). U.S. policies have influenced the global context of the war on drugs, including the antidrug campaign in the Philippines before Duterte. The aftermath of the U.S. declarations of war on drugs in 1971 as well as war on terror in 2001 saw detrimental consequences to h ­ uman rights. The militaristic and draconian approach to illegal narcotics and terrorism eventually proved in­effec­tive and resulted only in further oppression and injustices in many parts of the world (e.g., Koram 2019; Regilme 2018a, 2018b; Sandvik and Hoelscher 2017). In the Philippines the term “war on drugs” has become a euphemism for extrajudicial killings. It is mass murder in the name of an illusory war, often against the poor (Amnesty International 2017b), denying the humanity of drug suspects and eradicating them without accountability. Duterte mobilizes the police and the military to “shoot to kill” drug suspects and encourages vigilante groups by promising them immunity from ­legal obligations. To date the worst punishment for officers involved in the unlawful killing of drug suspects has been dismissal. ­These methods emboldened not only police and military officers but also ordinary civilians to carry out law-­and-­order duties meant for trained officers. The rule of law is no longer exclusive to state forces but has been disseminated to any armed individual willing to conduct an arrest or to kill. Known for his foul and profane language, Duterte spews hateful language, perpetuates fear, and encourages divisiveness in maintaining a narrative that if drug suspects are not eradicated the Filipino p­ eople w ­ ill be in a state of constant victimization. This narrative is similar to Stanton’s example of leaders claiming that “if we do not kill them, they ­will kill us” (Stanton 2016). This is justification based on self-­defense, thereby indoctrinating fear and consolidating public support for mass killings. A leader cannot hold on to a power­ful position that encourages, commits, and condones extrajudicial mass killings without the support of the state apparatus and the p­ eople. A key ele­ment, and prob­ably the most dangerous, in the preparation stage is the creation and utilization of po­liti­cal pro­cesses. Duterte has shown signs of

Challenging the ­Legal Bound­aries of Genocide • 113

authoritarianism in the country. Former justice secretary and current senator Leila de Lima, a vocal critic of the drug war, is now b­ ehind bars. In her previous role as the chairperson of the Commission on ­Human Rights, de Lima investigated Duterte’s links to the Davao Death Squad (Gavilan 2017). Some members of this squad have come forward and confessed their offenses (Holmes 2016). Duterte has both denied and admitted his connection with the squad (BBC News 2016; Nilles 2016), and prospects for an impartial investigation by national legislative bodies filled with Duterte loyalists remain bleak (Petty and Mogato 2017). Meanwhile, to discredit de Lima the president exposed her romantic affair with her driver who, according to Duterte, was a drug user and served as de Lima’s collector of financial bribes when she was justice secretary (Buan 2017). De Lima denied all allegations but was still arrested, prompting international condemnation. Duterte swiftly uses po­liti­cal pro­cesses to silence his opponents but consistently circumvents them with claims that murdering alleged criminals is not a crime. Extermination is the seventh stage of genocide. Killing is the method of extermination in Duterte’s war on drugs. Duterte declared, “Hitler massacred three million Jews. Now, t­ here are three million drug addicts. I would be happy to slaughter them. If Germany had Hitler, the Philippines would have [me].” The administration clarified that the above statement targets only three million criminals and not innocent p­ eople (ABS-­CBN News 2016a). Duterte peddles the drug war as a solution to social ills, and not mass killings, calling drug suspects mere parts of the “apparatus” of illegal drug use (Placido 2017). Most Filipinos buy into this rhe­toric of fear, blame, and hate; it is for this rhe­toric that they elected Duterte in the first place. “I do not care if I burn in hell for as long as the ­people I serve live in paradise,” he said during the election campaign. Duterte’s messianic rhe­toric of delivering the Filipino ­people from evil was typical in past genocidal regimes. The Philippine Commission for ­Human Rights estimated in December 2018 that 27,000 deaths can be linked to the war on drugs (Maru 2018). The government denies this number (and excludes killings by unidentified gunmen and cases u­ nder investigation) with an official count of 5,526 as of June 2019, a decrease from its ­earlier count of 6,700 due to an “unintentional m ­ istake” (Johnson and Giles 2019). Denial is the eighth and final stage of genocide. It indicates that genocide has happened but perpetrators are trying to cover up their actions by eliminating evidence, intimidating witnesses, blocking investigations, and placing blame on the victims (Stanton 2016). According to an investigative report by H ­ uman Rights Watch, “to bolster their claims, the police routinely planted guns, spent ammunition, and drug packets next to the victims’ bodies” (Bouckaert 2017, 4). The same report concludes that police reports of suspects being killed ­because they resisted arrest depart from eyewitness accounts of murders of unarmed suspects already in custody. Witnesses and families choose not to speak or press

114 • Dahlia Simangan

charges out of fear of reprisals (Amnesty International 2017a, 295). ­These cases satisfy key components of the denial stage: covering up evidence and staging the crime scene, placing the blame on victims by claiming that they resisted and ­were killed in self-­defense, and inciting fear of reprisals among families and witnesses. Although Duterte expressed readiness to face any complaint against him, he has also threatened t­ hose raising their concern over the h ­ uman rights situation in the Philippines (­England 2016; Presidential Communications Operations Office [PCOO] 2017). He has called for the police to shoot h ­ uman rights activists and threatened investigations of t­ hose who criticize or demand investigation (Kine 2017). The government has also dismissed inquiries into Duterte and the deaths from his drug war (Villamor 2017).

Conclusion: Challenging the ­Legal Bound­aries of Genocide On February 8, 2018, the ICC announced its preliminary examination into the drug war in the Philippines to determine the basis for potential investigation. The examination covers alleged crimes committed since July 1, 2016, a day ­after Duterte took oath as the sixteenth president of the Philippines. A ­little over a month ­after the ICC announcement, Duterte unilaterally withdrew the Philippines from the Rome Statute, without concurrence from the Philippine Senate. The withdrawal, which took effect on March 17, 2019, has no consequences for the ongoing investigation. Duterte publicly expressed contempt for the ICC as well as for the UN ­Human Rights Council for passing a resolution prompting an investigation. Notwithstanding the issues of impartiality and in­de­pen­dence the ICC ­faces, Duterte’s withdrawal speaks to his attempt to evade international justice. Why, then, is it necessary to examine ­whether the Philippine war on drugs is an act of genocide or not if it can already be considered a crime against humanity punishable ­under the ICC? First, the war on drugs in the Philippines challenges the l­egal bound­aries of genocide. The events following Duterte’s assumption of the presidency satisfy the stages of genocide: classification, symbolization, dehumanization, organ­ization, polarization, preparation, extermination, and denial. This prompts a review of the relevance of the conventional definition of genocide, in par­tic­u­lar its ­limited application to national, ethnic, racial, or religious groups. This limitation suggests the immutability and exceptionalism of genocide as something historically specific and reserved for only the worst of crimes. Do the lives of the drug war victims ­matter less ­because they do not have a group identity? When Lemkin coined the term he was referring to the situation up to then. However, the means and methods of committing mass atrocities, including genocide, now take dif­ fer­ent forms (Theriault 2010), especially when group identity has become fluid and security threats have permeated into or become localized within the physical and social bound­aries of ­these groups. In the Philippines most victims have

Challenging the ­Legal Bound­aries of Genocide • 115

a low socioeconomic status and live in poor neighborhoods. Although the target victims do not belong to any of the group categories listed in the Genocide Convention, they are nevertheless collectively targeted in a state-­sponsored, systematic mass killing. Although Duterte’s drug war does not fall ­under the ­legal definition of the Genocide Convention, it is nevertheless an act of genocide but of a modern kind, smaller in scale (i.e., partial genocide), targeted at an internal “­enemy” (i.e., domestic genocide) belonging to a par­tic­u­lar socioeconomic class, and perpetrated by the state to legitimize its widespread violation of ­human rights. Second, since the Genocide Convention is not applicable, l­egal jurisdiction over alleged mass atrocities committed by Philippine state authorities falls u­ nder the ICC. It is common knowledge in the Philippines, as it has been concluded in several investigative reports (e.g., Bouckaert 2017), that the Philippine police have been directly involved in drug-­related vigilante killings and that Duterte’s open endorsement of extrajudicial executions of drug suspects implicates him and his se­nior officials in crimes against humanity. In September 2021, the ICC approved a formal investigation into the alleged crimes against humanity in the Philippines. However, crimes committed ­after the withdrawal of the Philippines from the Rome Statute took effect in March 2019 can no longer be examined by the ICC. This is concerning b­ ecause the drug war is still ongoing. In his 2018 State of the Nation address Duterte vowed that the drug war “­will be as relentless and chilling . . . ​as on the day it began” (PCOO 2018). He ­later promoted a se­nior police commander involved in a drug operation that killed two town mayors and ordered him to “start killing” in his new area of responsibility (Espina and Ranada 2019). Even during the pandemic, intensified killings and an increase in arbitrary arrests coincided with COVID-19 lockdowns and curfews (­Human Rights Watch 2021). Although the country’s Department of Justice started reviewing in 2021 cases of police abuses related to the war on drugs, po­liti­cal interference remains pos­si­ble. The inability or unwillingness of state actors and institutions to carry out prevention and punishment is one of the reasons for proposing a Convention on Crimes Against Humanity to require state parties to do more when it comes to the protection of h ­ uman rights and prevention of crimes against humanity (Washington University School of Law 2018). Third, labeling a mass atrocity as genocide or even as a crime against humanity takes years or even de­cades, as seen in the cases of the Armenian, Rwandan, and Bosnian genocides (Khan 2017). The prosecution of genocides and crimes against humanity can be done only ­after they have been completed, that is, ­after the killing of the last victim, and often when the perpetrators have already reached old age or died of natu­ral c­ auses. The stages of genocide can be particularly helpful in filling this l­ egal gap. They reveal that genocide is a process—­a series of actions—­that can last for years before they become obvious, instead of a single decisive event (Rosenberg 2012). Examining mass atrocities using the stages of genocide signals the potential for genocide or a crime against

116 • Dahlia Simangan

humanity and serves the purpose of providing early warnings, preventions, and timely responses. As impor­tant as it is to try the perpetrators, this signaling also pays attention to the urgent actions needed to save victims, especially in legally contested cases of genocide and other mass atrocities. The term “genocide” should not only provoke condemnation or intervention but also enable means of ­human rights protection. Duterte’s drug war is an assault on h ­ uman rights and the dignity of marginalized groups in the Philippines, particularly the poor. It also challenges the relevance and effectiveness of international l­egal instruments aimed at h ­ uman rights protection. In a global environment where h ­ uman rights are at risk, t­ here is an urgent need to rethink and refine the l­egal bound­aries of h ­ uman rights frameworks. Placing a l­ egal, moral, or symbolic label on the war on drugs in the Philippines cannot undo the deaths of suspected drug users, unarmed civilians, the adik, the poor, “them”—­but it pre­sents an opportunity to stop the deaths of ­those who w ­ ill be targeted next.

References ABS-­CBN News. 2016a. “Duterte Rejects Hitler Label, Abella Says.” October 1. —­—­—. 2016b. “PNP: Crime Rate Down, but Murder Rate Up.” December 19. Agence France-­Presse. 2017. “Criminals Are Not H ­ uman—­Aguirre.” Inquirer, February 1. Amnesty International. 2017a. “Amnesty International Report 2016/17: The State of the World’s ­Human Rights.” https://­w ww​.­amnesty​.­org ​/­en​/­documents​/­pol10​/­4800​ /­2017​/­en​/­. —­—­—. 2017b. “ ‘If You Are Poor, You Are Killed’: Extrajudicial Executions in the Philippines’ ‘War on Drugs.’  ” https://­w ww​.­amnestyusa​.­org​/­reports​/­if​-­you​-­are​-­poor​ -­you​-­are​-­k illed​-­extrajudicial​-­executions​-­in​-­the​-­philippines​-­war​-­on​-­drugs​/­. BBC News. 2016. “Philippines’ Duterte Admits Personally Killing Suspects.” December 14. Bouckaert, P. 2017. “ ‘License to Kill’: Philippine Police Killings in Duterte’s ‘War on Drugs.’  ” ­Human Rights Watch. https://­w ww​.­hrw​.­org​/­report​/­2017​/­03​/­02​/­license​ -­k ill​/­philippine​-­police​-­k illings​-­dutertes​-­war​-­drugs#. Buan, L. 2017. “Explainer: What Is Leila de Lima Being Accused Of?” Rappler, February 26. Burns, R. 2018. “Why the UN Convention on Genocide Is Still Failing, 70 Years On.” In­de­pen­dent, December 22. Caruncho, E. S. 2016. “Confessions of a Troll.” Inquirer, August 28. Chalk, F. R. and K. Jonassohn. 1990. The History and Sociology of Genocide: Analyses and Case Studies. New Haven, CT: Yale University Press. Charny, I. 1994. “­Towards a Generic Definition of Genocide.” In Genocide: Conceptual and Historical Definitions, edited by G. J. Andreopoulos, 64–94. Philadelphia: University of Pennsylvania Press. Curato, N. 2016. “Politics of Anxiety, Politics of Hope: Penal Pop­u­lism and Duterte’s Rise to Power.” Journal of Current Southeast Asian Affairs 35 (3): 91–109. DeWeese, G. S. 1998. “The Failure of the International Court of Justice to Effectively Enforce the Genocide Convention.” Denver Journal of International Law and Policy 26 (4): 625–654.

Challenging the ­Legal Bound­aries of Genocide • 117

­England, C. 2016. “Philippines’ Rodrigo Duterte Threatens to Burn Down United Nations over ­Human Rights Abuse Accusations.” In­de­pen­dent, December 23. Espina, M. P., and P. Ranada. 2019. “Duterte O ­ rders Espenido: ‘Go, Start Killing’ in Bacolod.” Rappler, October 18. Feierstein, D. 2014. Genocide as Social Practice: Reor­ga­niz­ing Society ­under the Nazis and Argentina’s Military Junta. New Brunswick, NJ: Rutgers University Press. Fein, H. 1979. Accounting for Genocide: National Response and Jewish Victimization during the Holocaust. New York: F ­ ree Press. Gallagher, A. 2013. Genocide and Its Threat to Con­temporary International Order. London: Palgrave Macmillan. Gallagher, A., E. Raffle, and Z. Maulana. 2019. “Failing to Fulfil the Responsibility to Protect: The War on Drugs as Crimes Against Humanity in the Philippines.” Pacific Review 33 (2): 247–277. Gavilan, J. 2017. “Timeline: Probing into the Davao Death Squad.” Rappler, June 30. Glanville, L. 2009. “Is ‘Genocide’ Still a Power­f ul Word?” Journal of Genocide Research 11 (4): 467–486. Goel, A. 2016. “The World Needs to Wake Up and Call Rodrigo Duterte’s Brutal War on Drug Addicts What It Is: Genocide.” Quartz, December 13. Harff, B., and T. R. Gurr. 1988. “­Toward Empirical Theory of Genocides and Politicides: Identification and Mea­sure­ment of Cases since 1945.” International Studies Quarterly 23 (3): 359–371. Hinton, A. L. 2012. “Critical Genocide Studies.” Genocide Studies and Prevention: An International Journal 7 (1): 5–15. Holmes, O. 2016. “Philippines President Ordered Murders and Killed Official, Claims Hitman.” Guardian, September 15. ­Human Rights Watch. 2016. “Philippines: Aquino’s Doubtful Legacy on ­Human Rights: No Real Pro­gress on Justice for Serious Abuses.” January 27. https://­w ww​ .­hrw​.­org​/­news​/­2016​/­01​/­27​/­philippines​-­aquinos​-­doubtful​-­legacy​-­rights. —­—­—. 2021. “Philippines: ‘Drug War’ Killings Rise during Pandemic.” January 13. https://­w ww​.­hrw​.­org​/­news​/­2021​/­01​/­13​/­philippines​-­drug​-­war​-­k illings​-­rise​-­during​ -­pandemic. International Criminal Court. 2011. Rome Statute of the International Criminal Court. The Hague: International Criminal Court. Ikenberry, G. J. 2018. “The End of Liberal International Order?” International Affairs 94 (1): 7–23. Johnson, H., and C. Giles. 2019. “Philippines Drug War: Do We Know How Many Have Died?” BBC News, November 12. Khan, S. 2017. “Ethnic Cleansing vs. Genocide: The Politics ­Behind Labeling the Rohingya Crisis.” CATO Institute, November 29. Kiernan, B. 2007. Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur. New Haven, CT: Yale University Press. Kine, P. 2017. “Philippines: Duterte Threatens H ­ uman Rights Community.” H ­ uman Rights Watch, August 17. https://­w ww​.­hrw​.­org​/­news​/­2017​/­08​/­18​/­philippines​ -­duterte​-­threatens​-­human​-­rights​-­community. Koram, K., ed. 2019. The War on Drugs and the Global Colour Line. London: Pluto Press. Kuper, L. 1981. Genocide: Its Po­liti­cal Use in the Twentieth ­Century. New Haven, CT: Yale University Press. Lamb, K. 2017. “Thousands Dead: The Philippine President, the Death Squad Allegation and a Brutal Drugs War.” Guardian, April 2.

118 • Dahlia Simangan

Lamble, K., and M. Mohan. 2016. “Trolls and Triumph: A Digital ­Battle in the Philippines.” BBC News, December 7. Lemkin, R. 1944. Axis Rule in Occupied Eu­rope: Laws of Occupation—­Analy­sis of Government—­Proposals for Redress. Washington, DC: Car­ne­g ie Endowment for International Peace. Macapagal, M. 2018. “PNP: Crime Rate Drop, but Murder Rate Up in 2 Years.” ABS-­CBN News, July 19. Maddox, K. 2015. “ ‘Liberat[ing] Mankind from Such an Odious Scourge’: The Genocide Convention and the Continued Failure to Prevent or Halt Genocide in the Twenty-­ First ­Century.” Genocide Studies and Prevention: An International Journal 9 (1): 48–65. Maru, D. 2018. “CHR Chief: Drug War Deaths Could Be as High as 27,000.” ABS-­CBN News, December 5. McDonnell, M. A., and A. D. Moses. 2005. “Raphael Lemkin as Historian of Genocide in the Amer­i­cas.” Journal of Genocide Research 7 (4): 501–529. Melson, R. 1992. Revolution and Genocide: On the Origins of the Armenian Genocide and the Holocaust. Chicago: University of Chicago Press. Moses, A. D. 2008. “­Toward a Theory of Critical Genocide Studies.” In Online Encyclopedia of Mass Vio­lence. https://­w ww​.­sciencespo​.­fr​/­ceri​/­en​/­ouvrage​/­oemv. —­—­—. 2010. “Raphael Lemkin, Culture, and the Concept of Genocide.” In The Oxford Handbook of Genocide Studies, edited by D. Bloxham and A. D. Moses, 19–41. Oxford: Oxford University Press. —­—­—. 2011. “Revisiting a Founding Assumption of Genocide Studies.” Genocide Studies and Prevention: An International Journal 6 (3): 287–300. Murphy, S. 2015. “­Toward a Convention on Crimes Against Humanity.” La Revuew des droits de l’ homme 7:1–10. Muyot, Alberto T. 1992. “­Human Rights in the Philippines, 1986–1991.” Quezon City: University of the Philippines, Institute of International L ­ egal Studies, Law Center. Nilles, G. 2016. “Duterte Denies Involvement in Davao Death Squad.” Philippine Star, September 23. Pangalangan, R. C. 2011. “­Human Rights Discourse in Post-­Marcos Philippines.” In ­Human Rights in Asia, edited by T. W. D. Davis and B. Galligan, 56–69. Cheltenham: Edward Elgar. Petty, M., and M. Mogato. 2017. “Citing Lack of Proof, Philippine Senators End Duterte ‘Death Squad’ Inquiry.” R ­ euters, March 6. Placido, D. 2017. “Drug War Only Targeting the Poor? That’s How It Is, Says Duterte.” ABS-­CBN News, March 8. Presidential Communications Operations Office (PCOO). 2017. “State of the Nation Address of Rodrigo Roa Duterte President of the Philippines to the Congress of the Philippines.” Presidential Communications Operations Office, July 24. —­—­—. 2018. “State of the Nation Address of Rodrigo Roa Duterte President of the Philippines to the Congress of the Philippines.” July 23. Ratner, S. R. 2007. “Can We Compare Evils: The Enduring Debate on Genocide and Crimes against Humanity.” Washington University Global Studies Law Review 6 (3): 583–589. Regilme, S. S. F., Jr. 2016. “Why Asia’s Oldest Democracy Is Bound to Fail.” Journal of Development Socie­ties 32 (3): 220–245. —­—­—. 2018a. “A H ­ uman Rights Tragedy: Strategic Localization of US Foreign Policy in Colombia.” International Relations 32 (3): 343–365.

Challenging the ­Legal Bound­aries of Genocide • 119

—­—­—. 2018b. “Does US Foreign Aid Undermine H ­ uman Rights? The ‘Thaksinification’ of the War on Terror Discourses and the H ­ uman Rights Crisis in Thailand, 2001 to 2006.” ­Human Rights Review 19:73–95. Ressa, M. A. 2016. “Propaganda War: Weaponizing the Internet.” Rappler, October 4. Reyes, D. A. 2016. “The Spectacle of Vio­lence in Duterte’s ‘War on Drugs.’ ” Journal of Current Southeast Asian Affairs 35 (3): 111–137. Roberson, D., and A. Pratt. 2017. “The Filipino President Has Deployed a ‘Social Media Army’ to Push His Agenda.” Public Radio International, January 10. Roberts, J. V., L. J. Stalans, D. Indermaur, and M. Hough. 2003. Penal Pop­u­lism and Public Opinion: Lessons from Five Countries. New York: Oxford University Press. Rosenberg, S. P. 2012. “Genocide Is a Pro­cess, Not an Event.” Genocide Studies and Prevention: An International Journal 7 (1): 16–23. Sales, P. M. 2009. “State Terror in the Philippines: The Alston Report, ­Human Rights and Counter-­insurgency ­under the Arroyo Administration.” Con­temporary Politics 15 (3): 321–336. Sandvik, K. B., and K. Hoelscher. 2017. “The Reframing of the War on Drugs as a ‘Humanitarian Crisis’: Costs, Benefits, and Consequences.” Latin American Perspectives 44 (4): 168–182. Sartori, G 1970. “Concept Misinformation in Comparative Politics.” American Po­liti­cal Science Review 64 (4): 1033–1053. Schabas, W. A. 2004. “The International L ­ egal Prohibition of Genocide Comes of Age.” ­Human Rights Review 5 (4): 46–56. —­—­—. 2007. “Origins of the Genocide Convention: From Nuremberg to Paris.” Case Western Reserve Journal of International Law 40 (1): 35–55. —­—­—. 2010. “Genocide Law in a Time of Transition: Recent Developments in the Law of Genocide.” Rutgers Law Review 61 (1): 161–192. Scherrer, C. P. 1999. “­Towards a Theory of modern genocide. Comparative genocide research: Definitions, Criteria, Typologies, Cases, Key Ele­ments, Patterns and Voids.” Journal of Genocide Research 1 (1): 13–23. Shaw, M. 2015. What Is Genocide? Cambridge: Polity. Simangan, D. 2018. “Is the Philippine ‘War on Drugs’ an Act of Genocide?” Journal of Genocide Research 20 (1): 68–69. Simon, T. W. 1996. “Defining Genocide.” Wisconsin International Law Journal 15:243–257. Smith, R. W. 2000. “­Human Destructiveness and Politics: The Twentieth ­Century as an Age of Genocide.” In Genocide and the Modern Age, edited by I. Wallimann and M. N. Dobkowski, 21–39. New York: Syracuse University Press. Stanton, G. H. 2016. “The Ten Stages of Genocide.” Genocide Watch. http://­genocide​ watch​.­net​/­genocide​-­2​/­8​-­stages​-­of​-­genocide​/­. Symmes, P. 2017. “President Duterte’s List.” New York Times, January 10. Szalavitz, M. 2016. “Why We Ignore Thousands of Killings in the Philippines: The Victims ­Were Drug Users.” Washington Post, October 6. Theriault, H. C. 2010. “Genocidal Mutation and the Challenge of Definition.” Metaphilosophy 41 (4): 481–524. United Nations. 1948. “Convention on the Prevention and Punishment of the Crime of Genocide ­Adopted by the General Assembly of the United Nations on December 9, 1948.” Vera Files. 2018. “Vera Files Fact Sheet: A Trail of False Claims Made and Fake News Shared by Mocha Uson.” October 3. https://­verafiles​.­org​/­articles​/­vera​-­fi les​-­fact​-­sheet​ -­trail​-­false​-­claims​-­made​-­and​-­fake​-­news.

120 • Dahlia Simangan

Villamor, F. 2017. “Philippines Kills Impeachment Complaint Against Rodrigo Duterte.” New York Times, May 15. Washington University School of Law. 2018. “Crimes Against Humanity Initiative.” Washington University in St. Louis. http://­sites​.­law​.­w ustl​.­edu​/ ­WashULaw​ /­crimesagainsthumanity​/­. Weissman, R. 1994. “ ‘Development’ and Denial of ­Human Rights in Ramos’s Philippines.” Harvard H ­ uman Rights Journal 7:251–263. Worley, W. 2016. “Philippines President Rodrigo Duterte Tells P ­ eople to ‘Go Ahead and Kill’ Drug Addicts.” In­de­pen­dent, July 2.

Part 4

The United States and ­Human Rights Challenges

8

­ uman Rights at Risk H in the Era of Trump and American Decline SALVADOR SANTINO F. REGILME JR. ­ uman rights and po­liti­cal freedoms have been ­under siege in quite unpre­ce­ H dented ways since the end of the Cold War.1 According to the Freedom House (2019) report, ­people from sixty-­eight countries experienced severe deterioration in civil and po­liti­cal rights in 2018, while only fifty countries registered net improvements. In addition, the same report recorded a global deterioration of po­liti­cal freedoms for the previous thirteen consecutive years, from 2005 to 2018. While the post–­Cold War era facilitated the emergence of liberal democracies worldwide, a considerable number of ­those countries that transitioned ­toward democ­ratization have faced significant hurdles in consolidating their regimes. Similarly, CIVICUS (2019), a global consortium of civil society organ­izations, finds that a majority of countries worldwide have an “obstructed,” or even worse “repressed,” civic space, where po­liti­cal dissent against state abuses could flourish.2 Globally, very few countries have an “open” civic space, many of which are located in Northern Eu­rope as well as Australia and New Zealand. In the entire American continent, only four countries have an “open” civic space classification, namely, Canada, Uruguay, Suriname, and Costa Rica. Accordingly, the civic space in the United States, however, deteriorated and “narrowed” u­ nder the Trump administration. Particularly, the ­Human Rights Watch (2019, 1)

123

124 • Salvador Santino F. Regilme Jr.

report maintains that the United States has “continued to move backward on ­human rights at home and abroad in the second year of former president Donald Trump’s administration,” which “­were able to pass laws, implement regulations, and carry out policies that violate or undermine ­human rights.” This perception of decline in the U.S. government’s commitment to h ­ uman rights becomes more worrying, especially when we consider the U.S. government’s long-­standing reliance on h ­ uman rights and humanitarian discourses to justify and to legitimize its foreign policy interventions abroad (Forsythe 2011). Many of ­these so-­called humanitarian actions have generated enormous damage to ­human socie­ties beyond the U.S. territory, as illustrated by the millions of lives that perished in the U.S.-­led wars in Iraq, Af­ghan­i­stan, and elsewhere (Herman 2011; Ralph 2013; Shafiq 2013; Regilme 2018, 2020). The core puzzle of this chapter constitutes several interrelated questions: While such violent interventions certainly preceded the Trump administration, how do we make sense of the Trump administration’s discursive stance and policy actions in regard to the long-­standing exceptionalist narrative of the United States as the world’s most power­ful promoter of democracy and ­human rights? Amid the perception of American decline, how does the Trump administration undermine Amer­i­ca’s commitment to international h ­ uman rights, within and beyond the United States? How does the Trump administration differ from his pre­de­ces­sors in regard to international ­human rights, particularly when China, the most serious challenger to U.S. dominance in world politics, seldom invokes international h ­ uman rights in its actions abroad? This chapter reflects on the uniqueness of the Trump presidency and the emerging authoritarian politics elsewhere. My core argument states that while neoliberalism’s detrimental consequences to h ­ uman rights within and beyond the United States constitute a relatively long history, Trump and his allies have abandoned the legitimation tactics that their pre­de­ces­sors had so willingly used. Also, I maintain that American decline not only pertains to the decreasing economic vitality underscored by the concrete detrimental effects generated through sharpening material in­equality within the United States but also constitutes its increasingly tarnished legitimacy as a dominant actor in the international system. In building my core argument, this chapter proceeds as follows. The next section examines the status of the United States as a dominant power in the international system and its implications to the international ­human rights regime. Next, I analyze the deterioration of the international ­human rights regime vis-­ à-­vis the emergence of authoritarian politicians elsewhere. The penultimate section underscores the principal ways that the Trump administration undermined the U.S. government’s domestic and international commitments to ­human rights. This chapter concludes by underscoring the patterns of continuity and change in the exercise of American power abroad as well as their implications for the global h ­ uman rights regime.

­Human Rights at Risk in the Era of Trump and American Declin • 125

The State of American Power in Domestic and Global O ­ rders The apparently intractable social conflicts fueled by material insecurities constitute one of the key ele­ments of the decline of American power, while also considering that such a model of governance is not purely an American phenomenon but is also projected across vari­ous national constitutional ­orders worldwide. As Carla Norrloff (2018, 64) rightfully argues, the “challenge confronting the United States t­oday is not an international re­distribution prob­lem but a domestic re­distribution prob­lem, which ‘Amer­i­ca first’ ­will only make worse of the available gains to create more severe distributive pressures,” and she further contends that the uneven material gains in what is supposedly the international order is further reinforced by the uneven domestic distribution of economic gains within the United States. In the long term, the sustainability of a state’s claim to world dominance depends on its ability to effectively manage internal sociopo­liti­cal unrest, which is often triggered by increasingly unmanageable economic in­equality and the perceived lack of social mobility. Indeed, severe material insecurities in a society could generate vari­ous transformative forms of po­liti­cal instability (Houle 2016; Cederman, Weidmann, and Gleditsch 2011; Lessmann 2016). ­There are some indications that the Trump presidency had accelerated Amer­ i­ca’s trajectory ­toward potentially transformative forms of po­liti­cal instability. Recognizing that “deepening polarization and radicalization of the Republican Party” have debilitated Amer­i­ca’s demo­cratic institutions since the 1980s, several scholars predicted that the Trump administration would facilitate the emergence of “competitive authoritarianism—­a system in which meaningful demo­cratic institutions exist yet the government abuses state power to disadvantage its opponents” (Mickey, Levitsky, and Way 2017). Trump’s attempt to discard constitutional demo­cratic pro­cesses became much clearer on January 6, 2021, when his supporters attempted to cancel Biden’s electoral victory by launching violent attacks and riots at the U.S. Capitol. This unfortunate episode threatened not only the fate of electoral demo­cratic pro­cesses but also the lives of many members of Congress and other government leaders. Moreover, the Trump presidency advocated un­regu­la­ted markets and the absence of domestic state interference in the national economy only to the extent that allies are given undue advantages (Stokes 2018). Trump resisted divesting from his corporate interests, opposed openness to full disclosure of his wealth, and strongly favored elites with clear interest in blatantly influencing governmental policies in exchange for holding events and engaging in transactions in Trump-­related businesses (Yglesias 2018). Even so, the Trump administration was committed to punishing wealthy cap­i­tal­ists who publicly criticized him. For example, Trump threatened to use antitrust laws to punish Amazon, in retaliation of billionaire Jeff Bezos, who also owns the Washington Post, which has been per­sis­tent in its investigations of Trump’s scandals (Heer 2018).

126 • Salvador Santino F. Regilme Jr.

The decline of American dominance in the international system illustrates the inability of the current global order to legitimize itself using its own moral logic as well as the endogenous mechanisms for self-­correction. For example, emerging liberal democracies in the Global South regularly elect their ruling leaders at vari­ous levels of government. Yet, abusive elites have manipulated electoral pro­cesses and institutional checks and balances in their respective demo­ cratic socie­ties in ways that state agents could openly and systematically abuse their power and undermine the individual rights of the governed populations—­a pro­cess that can be blamed for the demo­cratic recession that the world has experienced since 2005 (Diamond 2016). Even before Trump, big corporate interests and established po­liti­cal dynasties per­sis­tently dominated federal and state levels, thereby suggesting the per­sis­tent “oligarchic-­democratic” features of governance in the United States (Regilme 2019). The emergence of Bernie Sanders and the eventual po­liti­cal success of Donald Trump (in 2016)—­both of whom are widely considered as outsiders to their respective po­liti­cal parties—­demonstrate the profound dissatisfaction in the often saturated and predictable policy positions of establishment politicians, who control e­ ither the Republican or Demo­cratic parties. Yet, ­there are two key ­factors that facilitated the recent rise of Trump and Sanders in mainstream American po­liti­cal imagination. The first ­factor pertains to the “growing distrust of the formal institutions that or­ga­nize social, economic, and po­liti­cal power within” individual states, while the second aspect refers to the “discontent with systems of power that appear to preserve and entrench prevailing class structures” (Hadiz and Chryssogelos 2017). The rise of Trump reflects the “the erosion of the legitimacy of po­liti­cal elites, representative institutions and the globalist orientation that has long dominated US politics” (Chacko and Jayasuriya 2017). In other words, the rise of authoritarian neoliberal politicians worldwide demonstrates a fundamental decline in the legitimacy of the American imperium. The second dimension, meanwhile, refers to the economic aspects of the con­temporary decline of American power. I refer to the increasing economic in­equality within many national po­liti­cal systems worldwide. While the extremely rich elites continue to accumulate scandalous levels of wealth, a large number of ­people worldwide are suffering from extreme poverty. The continued slimming down of welfare states in the Global North has made it more difficult for the most vulnerable citizens to escape from the systemic vicissitudes of poverty. Many Western states face severe pressures in sustaining their programs primarily b­ ecause of their stagnant economic growth and weakened levels of economic competitiveness relative to the emerging economies in the Global South and the complex challenges posed by neoliberal globalization (Razin and Sadka 2005; Bromund 2018). American power’s sustainability depends on its internal domestic stability, whereby economic growth and robust welfare provisions foster satisfaction and undermines social conflict.

­Human Rights at Risk in the Era of Trump and American Declin • 127

Yet, domestically, the Trump administration unashamedly overturned the universal health care reforms that the previous administration fiercely strug­gled to implement amid highly contentious politics across party lines. In the face of peaceful re­sis­tance brought by the majority, who are disadvantaged by neoliberalism, electoral demo­cratic states have evolved to becoming what is now called by some scholars “authoritarian neoliberalism,” which is constituted by two features: (1) coercion and criminalization of po­liti­cal opposition and (2) deployment of the state’s apparatuses that deters any form of external re­sis­tance against neoliberalism (Tansel 2017). With the United States as its epicenter, the 2007–2008 financial crisis highlighted the fundamental failures of the American po­liti­cal economy that systematically privileges the logic of capital accumulation regardless of their domestic consequences to ­human rights. This political-­economic logic becomes more evident when one looks into how Western governments, including the U.S. federal government, generously and unhesitatingly doled out billions of dollars as bailout funds for failing financial conglomerates. Even though Trump’s rhe­toric highlights an economic nationalist strategy, business elites within and beyond the United States, as it was shown in the 2018 World Economic Forum in Davos, have somehow discarded Trump’s sexism and racism. Accordingly, “much of the moneyed elite who pay the bills for many Davos festivities are willing to overlook what they portray as the American president’s rhetorical foibles in ­favor of focusing on the additional wealth he has delivered to their coffers,” especially that Trump “has made good on his words, having slashed corporate taxes and ditched regulations they view as anti-­business” (Goodman 2018, 4–5). Also, a part of this decline in American power constitutes the severe bud­get prob­lems that the U.S. federal government has been facing. Mick Mulvaney, the most se­nior official on bud­get management issues in the Trump administration, confirmed that the “challenge of ­great stakes” refers to the fact that “$20 trillion national debt is a crisis, not just for the Nation, but for ­every citizen” and that “each American’s share of this debt is more than $60,000 and growing” (Office of the President of the United States, Office of Management and Bud­ get 2017). In order to purportedly resolve the bud­get crisis, the Trump administration embraced a probusiness strategy by easing taxes for businesses and the rich as the preferred policy strategy, while equitable economic growth remained outside Trump’s policy agenda (Office of the President of the United States, Office of Management and Bud­get 2017, 15). This commitment to lift the tax burdens of the elites had detrimental consequences for the already unreliable U.S. welfare system. Even before Trump, the Obama administration faced severe challenges in building a moral consensus among politicians and their constituencies that it is the state’s obligation to guarantee an effective health care system that can be reliably accessed by all Americans. Unsurprisingly, the Trump administration,

128 • Salvador Santino F. Regilme Jr.

during its first year, quickly spent its po­liti­cal capital in publicly vilifying and trying to dismantle the Affordable Care Act (ACA). Yet, it failed in fully repealing the ACA, and the White House focused on gradually introducing provisional amendments instead. This breakdown in po­liti­cal consensus that was needed for building and sustaining a robust social safety net system emerged amid the Trump administration’s efforts to eliminate regulatory mea­sures and to reduce, if not totally eliminate, the tax burden of wealthy business actors. In fact, during the early months of the Trump administration, the Republican Party tried to repeal Obamacare and proposed instead the American Health Care Act. In effect, the proposal constituted abolishing the health insurance of millions of U.S. citizens while the U.S. Congress pushed for $600 billion worth of tax cuts for the richest 0.1 ­percent of the U.S. population—an outcome that would save the most affluent Americans almost $200,000 worth of tax obligations each year (Matthews 2017). What does the prob­lem of the neoliberal-­induced weakening of the domestic American welfare mean for American power? First, the increasing economic in­equality within the United States and its constitutive entrenched patterns of racial and gender stratification pose enduring difficulties for the federal government to effectively govern the polity. This means that domestic and foreign policy proposals evade open, deliberative, and representative discussions involving diverse constituencies across American society. Essentially, governance becomes an exclusively elite undertaking rather than a truly demo­cratic and deliberative task of diverse sectors of the American polity. Second, the continuous weakening and perhaps eventual dissolution of a system of state-­supported welfare entitlements could further increase the level of public distrust of state institutions, an outcome that would further delegitimize the domestic authority of the U.S. government (Regilme 2014). Third, the prospect of serious po­liti­cal instability in the United States tarnishes the global moral appeal of open and demo­cratic socie­ties and consequently bolsters alternative models of governance, including authoritarian po­liti­cal systems. Based on a 2018 Gallup World Poll survey, the United States registered a remarkably low 30 ­percent median approval rate across 134 countries (previously 48  ­percent in 2017 u­ nder the Obama administration), which places it approximately level with China (31 ­percent) and Rus­sia (27 ­percent) (Ray 2018). This low approval rating suggests that it would be difficult for the United States to proj­ect its economic and po­liti­cal interests in its bilateral relations with other states as well as in vari­ous global governance institutions. Perhaps this low rating could also be attributed to the global public sphere’s dissatisfaction with the United States as an exemplary governance model. At the transnational level, the remarkable deterioration of the U.S. economy and its failure to equitably distribute wealth across society have radically undermined American power abroad. The sharp decline of U.S. relative productivity and share of world merchandise since the start of the millennium increases the probability that rival states could use their expanding relative economic growth

­Human Rights at Risk in the Era of Trump and American Declin • 129

in challenging the already fragile American imperium (Mandel 2012). Meanwhile, China, the world’s second largest economic power, boasts an average of 10 ­percent GDP annual growth in the last two decades—­although this growth rate is expected to decline in the short term to around 7 ­percent. During the Nineteenth National Congress of the Communist Party in Beijing, Chinese president Xi Jinping proudly declared that China contributes 30 ­percent of global economic growth and, most notably, laid out his “three-­decade road map t­ oward ­great power status, saying by 2050 the country would be a global leader in innovation, influence and military might” (Bloomberg 2017). Also, other non-­Western countries, including Rus­sia, Brazil, Indonesia, and many ­others in the Global South, have continued to enlarge their share of the world economy (Gray and Murphy 2013; Regilme and Parisot 2017a, 2017b; Hameiri and Jones 2018). Despite the COVID-19 pandemic, “China’s economy grew at the slowest pace in more than four de­cades last year, official figures show, but remains on course to be the only major economy to have expanded in 2020” (BBC News 2021). The rapid economic growth of non-­Western powers poses new challenges and uncertainties in what used to be a world economic system that has been usually underwritten by American imperium (Regilme and Hartmann 2019; Regilme and Hodzi 2021). To further expand or at least sustain their economies, emerging markets from the Global South have to push for their interests in vari­ous global governance institutions and geostrategic areas in ways that could facilitate such an expansion—­and ­those efforts could, at times, clash against American interests. An example of this is the highly contentious rivalry between the United States and China in the development aid sector in the African continent, whereby Beijing uses foreign aid to gain access to valuable African natu­ral resources and commodities that are needed for the continued growth of the Chinese economy (Regilme and Hartmann 2018). The extent to which such clashes could be detrimental to U.S. power is an open question, although reemerging powers in world politics tend to use their newly acquired economic wealth to fund their coercive apparatus that would then be used for further global expansion of po­liti­cal and economic power (Shlapentokh 2004; Viola 2017). For instance, since 2012, the Chinese government u­ nder Xi Jinping has been rapidly constructing and developing artificial islands in and militarizing the South China Sea, where 60 ­percent of economic goods pass (Regilme 2018b). For China, ­future economic growth also requires the ability to rewrite the terms and conditions of the key global maritime trade routes through which China’s economic lifeblood flows. What does a weakened American power mean for the ­future of world politics? First, multilateral cooperation as a crucial mechanism of global governance could be undermined in ­favor of blatant and crude nationalist interests firmly entrenched in Trump’s “Amer­i­ca First” paradigm as well as in the programs of other similar politicians in Eu­rope and elsewhere. If reemerging powers such as India, Rus­sia, and China, among ­others, continue to exert their influence in their

130 • Salvador Santino F. Regilme Jr.

immediate home regions and in global governance and justify such actions through the prism of blatant nationalism, then we are likely to see a world system with “multiple power centers, with the principal actors stressing the objective of vindicating their own national interests” (Carpenter 2017, 43). Second, the rise of blatant nationalism could severely undermine basic princi­ples that protect individuals against abuses both from state and nonstate actors. In contrast to authoritarian nationalism that has recently gained traction, liberal internationalism represents one of the key princi­ples of the post-1945 world order, and it “embodies many bi-­partisan princi­ples: support for freedom, democracy, ­human rights, a ­free press, as well as an open world economy for the movement of goods, ser­vices, ­people, and ideas” (Chaudoin, Milner, and Tingley 2017, 1). If authoritarian nationalist politicians including Donald Trump continue to gain widespread support in vari­ous places worldwide, then arbitrarily defined notions of national interests—­which are often abusively instrumentalized by domestic po­liti­cal elites—­become bases of justification for increased domestic state repression of individual rights and welfare.

­Human Rights and the Crisis of Neoliberal Authoritarianism The global neoliberal crisis, as shown by failures in the U.S. po­liti­cal economy, suggests that the current international ­human rights regime is in the midst of a critical juncture. Particularly, the three key organ­izing princi­ples of world order—­ human rights, multiculturalism, and tolerance—­are in distress. First, authoritarian politicians and social movements that explic­itly and consistently uphold racist, sexist, and discriminatory po­liti­cal discourses and policy strategies have gained traction both in the public sphere and also in the corridors of power. Facilitated by neoliberalism, the global tidal wave of nationalist crony capitalism, which constitutes a “reaction to social dislocations tied to pro­ cesses of neoliberal globalization,” emerged from the “new kinds of social marginalization, precarious existence and disenchantment with the broken promises of liberal modernity” (Hadiz and Chryssogelos 2017, 399). As a key pillar of American dominance at the global level, the Eu­ro­pean Union’s self-­proclaimed identity as a “normative power” (Regilme 2011, 2013) or as a key global promoter of democracy and h ­ uman rights has yet to make a formidable defense of such norms against some its most discriminatory politicians from within its domain. The far-­right Alternative for Germany (AfD) po­liti­cal party in Germany in 2021 won almost 10  ­percent of the vote and has now sixteen seats in the German Parliament—­ thereby making the AfD the fifth largest party in the EU’s most influential member state. In France, although Marine Le Pen’s National Front (NF) lost to Emmanuel Macron’s En Marche! during the 2017 runoff elections, the party has aggressively promoted anti-­EU sentiments, nationalism, economic protectionism, and racism. Even the Netherlands, which is usually touted as one of the world’s most tolerant socie­ties, was unable to escape the tidal wave of

­Human Rights at Risk in the Era of Trump and American Declin • 131

illiberal pop­u­lism. Although Geert Wilders of the anti-­Islam and racist Freedom Party (PVV) did not succeed in becoming the prime minister of the Netherlands, he remains in power as a parliamentarian and his PVV party won seventeen of the 150 seats in the House of Representatives—­making his party the third largest in the Dutch government. Such challenges from t­ hese movements can also be seen in other key countries within the EU, including Austria, Hungary, Sweden, Bulgaria, and Slovakia, among ­others. Thus, within the Global North, many racist, sexist, and intolerant politicians and public figures have gained traction not just in the mainstream public sphere. Many of ­these po­liti­cal movements have now occupied impor­tant positions in the ruling government of some of the largest electoral democracies in the world. A key U.S. ally in the Asia-­Pacific region, Thailand, ­a fter the fall of the corrupt regime of Thaksin Shinawatra in 2006, entered a period of po­liti­cal recession where a military junta has effectively replaced a system of competitive elections and a state that effectively upholds civil liberties and rights (Regilme 2018c, 2021). The Philippines’ Rodrigo Duterte, meanwhile, has unashamedly abandoned the country’s ­human rights commitments and demo­cratic reforms, in ­favor of killing poor ­people, harassing and detaining po­liti­cal dissidents, and empowering new and traditional elite groups (Johnson and Fernquest 2018). Th ­ ose dynamics are also replicated in Turkey, where the Erdogan-­led government has radically pursued neoliberal economic policies through authoritarian mea­sures and dismantlement of demo­cratic checks within the Turkish state (Lancaster 2014). Thus, even some American allies in the Global South are now caught by this pandemic of authoritarianism. With neoliberalism at its core, American power has consistently failed to uphold the moral princi­ples of material equality and global justice. American foreign policy—­through its wide range of aid programs and vigorous public diplomacy—­has championed the role of the state as a guarantor of ­free markets, property rights, and capital accumulation, which paved the way for other states worldwide to entrench further in­equality while emboldening the po­liti­cal power of economic elites. In many Global South countries, a robust welfare state tradition did not exist as U.S. global dominance in the era of decolonization did not champion the princi­ples of material justice—to the extent of advocating for equitable material distribution within and across newly formed national constitutional ­orders. Rather, U.S. power has contented itself with civil and po­liti­cal rights as organ­izing princi­ples within subservient states, while substantive issues of global governance focused upon only f­ ree trade, deregulation, and capital accumulation. As h ­ uman rights historian Samuel Moyn accurately notes, “The age of h ­ uman rights has not been kind to full-­fledged distributive justice, ­because it is also an age of the victory of the rich” (2018, 2). No won­der, even Philip Alston (2017, 9), the former UN special rapporteur on extrajudicial and arbitrary executions, contends that “economic and social rights must be an impor­tant and au­then­tic part of the overall agenda.” Alston’s experience in the UN ­Human

132 • Salvador Santino F. Regilme Jr.

Rights Council is telling: a very small percentage of all self-­professed ­human rights nongovernmental organ­izations in the council have a specific substantive focus on economic and social rights. The dominant global ­human rights narrative has parochially focused only on the procedural ele­ments of legitimation rather than the more pressing and morally compelling issues of material in­equality and global justice.

­Human Rights ­under the Neoliberal Trump Administration The Trump administration represented a new kind of departure in ­human rights rhe­toric in U.S. policy. Donald Trump’s po­liti­cal rhe­toric reflected profound disdain for peaceful po­liti­cal opposition, competitive electoral pro­cesses, and constitutional checks and balances within the state. Despite the failures of neoliberalism, Trump’s pre­de­ces­sors somehow effectively concealed them through the legitimating discourses of procedural democracy and civil and po­liti­cal rights. Trump, on the other hand, shamelessly threw away ­those legitimation discourses and consequently embraced authoritarian neoliberalism—­ although the full panoply of its material consequences has yet to fully unfold within and beyond the American society, even ­after Trump’s 2020 electoral loss and the emergence of the Biden presidency in early 2021. ­There are several behavioral patterns that show how Trump departed from his pre­de­ces­sors’ ­human rights commitments in terms of both discursive rhe­toric and ­actual practice. First, Trump openly and proudly articulated his admiration for authoritarian leaders such as Xi Jinping, Vladimir Putin, Rodrigo Duterte, and Recep Erdogan (Beauchamp 2017). For example, Trump’s discursive rhe­toric consistently suggested his preference for the use of violent repression over peaceful means (Calamur 2018). In April 2017, when the notorious Philippine president Duterte boasted that he was directly involved in the killings of suspected drug dealers during his time as a city mayor, Trump fervently congratulated him. Second, Trump and his cabinet officials per­sis­tently discredited the legitimacy of Washington DC’s press corps and established news media agencies by incorrectly alleging them as promoters of “fake news.” Third, Trump’s foreign and domestic policy strategies seldom invoked ­human rights as a foundational basis of public policy (Margon 2017). During his time as Amer­i­ca’s top diplomat, Rex Tillerson systematically avoided media coverage of his foreign diplomatic missions, and more tellingly, his absence during the launching of the annual ­Human Rights Report produced by his office suggests the low priority placed upon American ­human rights promotion abroad. In the landmark Amer­i­ca First Document, the first federal bud­get strategy of the Trump White House, references to ­human rights ­were non­ex­is­tent (Office of the President of the United States, Office of Management and Bud­get 2017). Moreover, the 2018 bud­get strategy also mandated severe cuts to foreign aid and contributions for multilateral institutions, many of which have been conduits of U.S. interest in promoting h ­ uman

­Human Rights at Risk in the Era of Trump and American Declin • 133

rights abroad. In the summer of 2017, the U.S. ambassador to the UN Nikki Haley unashamedly threatened U.S. withdrawal from the UN ­Human Rights Council “­unless reforms are ushered in including the removal of what it sees as an ‘anti-­Israel bias’ ” (Nebehay 2017, 1). It is unpre­ce­dented for the White House to directly and explic­itly use its long-­standing commitment to global ­human rights institutions as a pawn in exchange for geostrategic considerations such as its relationship with Israel. Fi­nally, the Trump administration asked the U.S. Citizenship and Immigration Ser­vices (USCIS) to form a task force that would review cases of naturalized U.S. citizens who allegedly lied in their citizenship applications—­a policy that has long been in place yet was rarely implemented during the Obama era. That same dynamic can be seen in the horrifying Trump policy of separating child immigrants caught at the U.S.-­Mexico border from their parents. Suggesting a sense of continuity from his pre­de­ces­sor, this policy from Trump “opens the door to him using a tactic Obama used in 2014: the wide-­scale detention of immigrant families for as long as it took to complete their immigration cases and deport them” (Lind 2018, 2). Though Obama rhetorically committed himself to ­human rights, albeit falling short in practice, the Trump administration miserably failed in ­human rights rhe­toric and practice—­and was particularly proud in d­ oing so. Trump’s bellicose rhe­toric and quite consistent disregard for ­human rights discourses did not fully constitute an unpre­ce­dented rupture on U.S. foreign policy. Rather, such changes should be regarded as a continuation of the U.S.-­led war on terror’s disregard for civil liberties and physical integrity rights. In d­ oing so, U.S. officials and their neoliberal elite allies invoke military security as the justificatory premise to quell po­liti­cal dissidence and claims for material justice in f­ avor of wealth accumulation. Especially a­ fter the post-9/11 war on terror, state officials and elites worldwide instrumentalized ­human rights to justify vio­lence, po­liti­cal killings, and enforced disappearances of both civilians and armed individuals. Rebecca Sanders (2018, 2) calls this discursive tactic of authoritarian actors the “plausible legality” of highly controversial policies, whereby they use “evasive language, they manoeuvre through and around ­legal rules in order to justify h ­ uman rights abuses, claiming that law means what they want it to mean.” That strategy has been quite evident since the post-9/11 global war on terror, when the United States and its allied states deployed intensified violent repression not only to kill terror groups but also to quell peaceful po­liti­cal dissidence as a way of consolidating their fledgling domestic authority. Another example is Obama’s use of ­human rights rhe­toric despite his strong reliance upon increased drone warfare that systematically killed civilians in the context of the war on terror (de Groot and Regilme 2020). Moreover, even before Trumpism, authoritarian nationalist discourses ­were on the rise in the past few years, and the post-9/11 security climate has conditioned many p­ eople worldwide that public security can be achieved only through a state’s intensification of po­liti­cal vio­lence. No won­ der that even ­after the end of the Bush presidency, t­ here seems to be a “constant

134 • Salvador Santino F. Regilme Jr.

drumbeat of comments demanding a return to methods of interrogation” (Alston 2017, 3). That is why, in the broadest sense, Trumpism was not necessarily a radical rupture in post–­Cold War world politics; rather, “Trump’s election and his foreign policy are not sui generis but the result of ongoing transnational structural transformations, including the failures of globalization and relative hegemonic decline” (Viola 2017, 329). Indeed, the United States has been quite inconsistent “regarding ­human rights in foreign policy, practiced by not only the Obama administration from the start, but at the end of the day by all administrations,” (Forsythe 2011, 767)—­not perhaps in terms of rhe­toric and diplomacy but in terms of tangible policy outcomes. ­There are three plausible ­factors for such an outcome in U.S. ­human rights policy abroad. First, in a highly competitive, nation-­based world order, the United States still perceives (unfortunately!) its compelling national interest as foundationally based upon military security and facilitating a neoliberal economic order upon which U.S. capital and trade interests would thrive. Second, the U.S. foreign policy agenda has to thrive amid the competing interests of nation-­states, numerous intergovernmental organ­izations, and vari­ous binding international h ­ uman rights commitments. Third, a wide array of domestic and foreign pressures within the U.S. federal government and beyond makes foreign policy unstable and unpredictable rather than per­sis­tently fixed in actualizing its h ­ uman rights commitments. Thus, as David Forsythe (2011, 768) rightfully describes, “Administrations may aspire to realist, liberal, or ultra-­ nationalist (neo-­con) goals in foreign policy, but in the end, they have inconsistent rec­ords on ­human rights issues” (see also Renouard 2016; Regilme 2018c). Lobby groups funded by wealthy elites and interest groups made it pos­si­ble for domestic and foreign U.S. policies to be less committed to h ­ uman rights than they should have been (van Apeldoorn and de Graaff 2014). While procedural democracy, po­liti­cal liberalism, and neoliberalism constitute the U.S.-­dominated world order (Brown 2006), ­those princi­ples are bound to fail due to their fundamental contradictions (Bridoux 2013). What Trump’s presidency and the rise of authoritarian pop­u­lism reveal are exactly ­those inherent weaknesses of the global order’s organ­izing logic. First, despite the collapse of formal Eu­ro­pean colonialism and the subsequent era of decolonization, the current world order constituted by material inequalities within and between nation-­states is unlikely to be sustainable—­and that exactly is the ontological defect that the American-­dominated world system is built upon. As theorist Michael Zürn rightly argues (2018, 96), “If the power­ ful found­ers (established powers or incumbent states) have institutionalized in­equality from the beginning, and if t­ here is no separation of powers to control this in­equality, a shift in the under­lying power constellation leads to contestation from the rising powers.” Several reemerging powers—­especially China, India, Rus­sia, Turkey—­have been more assertive in articulating their national interests and the distributive inequalities within the current world order, particularly in

­Human Rights at Risk in the Era of Trump and American Declin • 135

terms of the distribution of power in vari­ous global governance institutions. That contestation—­fueled by material grievances and identity-­based insecurity brought by hierarchical differentiation—­could lead to decay and instability of socie­ties, especially in established powers such as the United States and its rival states, especially China. Second, perceptions of systematic hy­poc­risy in U.S. foreign policies and the political-­economic strategies of the Global North, especially in the policy areas of democracy and ­human rights promotion, have been gaining traction to the extent that they diminish the legitimating appeal of American power. For example, although the U.S. Demo­cratic Party complains that the rise of Trump was brought by the surreptitious yet systematic interference of the Rus­sian government ­under Vladimir Putin, whose main objective was to destabilize the United States from within, American power has always been interventionist—­and, in many occasions, the United States has systematically used or­ga­nized vio­ lence upon civilians in order to further militaristic, geostrategic, and cap­i­tal­ ist objectives. Third, American power has promoted a very shallow notion of ­human rights that undermines the emancipatory hope that dignity should be enjoyed by Americans regardless of their varying backgrounds. Within the United States, the racial wealth gap remains at an abominable scale, whereby the U.S. Census Bureau’s 2017 Population Survey reported that “black families in Amer­i­ca earn just $57.30 for ­every $100 in income earned by white families,” or “for ­every $100 in white ­family wealth, black families hold just $5.04” (Badger 2017). Based on 2016 data, American w ­ omen earn “an average of only 79 cents for e­ very dollar earned by a white man,” while “single ­women own a mere 32 cents for ­every dollar that single men own”—­and such a gap becomes much sharper when classified along racial backgrounds (Mahathey 2016). Amid ­these prob­lems of material justice, governments of the Global North have ­wholeheartedly supported the bailout of failing corporate banking behemoths using ordinary p­ eople’s hard-­ earned money paid to the state as taxes. ­Those hefty billion-­dollar bailouts proceeded amid scandalous levels of reductions in state support for welfare goods such as education, health care, and other basic social ser­vices.

Conclusion The legitimacy and effectiveness of international h ­ uman rights norms rest on the commitment of state and nonstate actors in discursively articulating the importance of protecting ­human dignity in a consistent manner. Yet, it is clear that the Trump administration’s abandonment of discursive support for promoting po­liti­cal freedoms, ­human rights, and democracy abroad constituted another serious risk for the corrosion of the global ­human rights regime. The po­liti­cal crisis brought by Trumpism—­amid the rise of neo-­Nazism in Germany, Erdogan’s authoritarianism in Turkey, Bolsonaro’s autocratic rule in

136 • Salvador Santino F. Regilme Jr.

Brazil, Geert Wilders’s racism in the Netherlands, and Rodrigo Duterte’s ongoing genocide of poor ­people in the Philippines—is a crisis of our po­liti­cal economy. Trump, like his pre­de­ces­sors, used his privileged position and his presidential powers to enrich himself. Eu­rope’s crisis emerges from its accelerated speed of neoliberal regional integration amid a shrinking welfare state and a weakening commitment to public goods provision. Racist, sexist, and authoritarian politicians blame marginalized groups and identity politics as the main culprit—­rather than the neoliberal capitalism that has empowered Trump and his peers elsewhere. Trumpism is distinctive only to the extent that it has unmasked the under­lying logics of American power since 1945, albeit in very unconventional ways through blatantly offensive discourses and publicly supporting policies that ­favor wealthy elites—­tactics that ­were not openly used by Trump’s recent pre­ de­ces­sors. In other words, as Inderjeet Parmar (2018) accurately describes it, the U.S.-­led liberal world order is “imperialism by another name.” This imperial logic constitutes racialized differentiation and hierarchization, gendered exploitation, and authoritarian discipline underpinned by the logic of wealth accumulation. If the global h ­ uman rights regime has to save itself from the current crisis, then imperial modes of thinking and practices have to vanish—­and perhaps that means the dissolution of neoliberal logic upon which American power and imperium have faithfully depended for de­cades.

Notes 1 This essay is based on a previously published article: S. S. F. Regilme Jr., “The Decline of American Power and Donald Trump: Reflections on H ­ uman Rights, Neoliberalism, and the World Order,” Geoforum 102 (2019): 157–166. I thank Elsevier, the publisher of the journal, for permission to use the material in this volume. 2 In the annual CIVICUS report, t­ here are five types of civic space: (1) open, (2) narrowed, (3) obstructed, (4) repressed, and (5) closed.

References Alston, P. 2017. “The Populist Challenge to H ­ uman Rights.” Journal of H ­ uman Rights Practice 9 (1): 1–15. Badger, E. 2017. “Whites Have Huge Wealth Edge over Blacks (but D ­ on’t Know It).” New York Times, September 18. BBC News. 2019. “Covid-19: China’s Economy Picks Up, Bucking Global Trend.” https://­w ww​.­bbc​.­com​/­news​/­business​-­55699971. Beauchamp, Z. 2017. “A Top Adviser Says the Leaders Trump “Most Admires” Are All Authoritarians.” Vox, December 14. https://­w ww​.­vox​.­com​/­world​/­2017​/­12​/­14​ /­16776728​/­trump​-­admires​-­putin Bloomberg. 2017. “China Propels Global Economy through Best Per­for­mance in De­cade.” October 19. Bridoux, J. 2013. “US Foreign Policy and Democracy Promotion: In Search of Purpose.” International Relations 27 (2): 235–240.

­Human Rights at Risk in the Era of Trump and American Declin • 137

Bromund, T. 2018. “Eu­rope Paves the Way for Its Decline.” Heritage Foundation. Brown, W. 2006. “American Nightmare: Neoliberalism, Neoconservatism, and De-­democratization.” Po­liti­cal Theory 34 (6): 690–714. Calamur, K. 2018. “Nine Notorious Dictators, Nine Shout-­Outs from Donald Trump.” Atlantic, March 4. Carpenter, T. 2017. “The Populist Surge and the Rebirth of Foreign Policy Nationalism.” SAIS Review of International Affairs 37 (1): 33–46. Cederman, L.-­E ., N. B. Weidmann, and K. Gleditsch. 2011. “Horizontal Inequalities and Ethnonationalist Civil War: A Global Comparison.” American Po­liti­cal Science Review 105 (3): 478–495. Chacko, P., and K. Jayasuriya. 2017. “Trump, the Authoritarian Populist Revolt and the ­Future of the Rules-­Based Order in Asia.” Australian Journal of International Affairs 71 (2): 121–127. Chaudoin, S., H. V. Milner, and D. Tingley. 2017. “A Liberal International American Foreign Policy U ­ nder Trump? Maybe Down but Not Out.” Prince­ton University. CIVICUS. 2019. “State of Civil Society Report 2019.” https://­w ww​.­civicus​.­org​ /­documents​/­reports​-­and​-­publications​/­SOCS​/­2019​/­state​-­of​-­civil​-­society​-­report​-­2019​ _­executive​-­summary​.­pdf. de Groot, Tom, and S. Regilme. 2020. “Drone Warfare and the Obama Administration’s Path-­Dependent Strug­g les on ­Human Rights and Counterterrorism.” Interdisciplinary Po­liti­cal Studies 6 (1): 167–202. Diamond, Larry. 2016. In Search of Democracy. London: Routledge. Forsythe, D. P. 2011. “US Foreign Policy and ­Human Rights: Situating Obama.” ­Human Rights Quarterly 33:767–789. Freedom House. 2019. “Freedom in the World 2019.” https://­freedomhouse​.­org​/­report​ /­freedom​-­world​/­freedom​-­world​-­2019. Goodman, Peter. 2018. “Bottom Line for Davos Elite: Trump Is Good for Business.” New York Times, January 24. https://­w ww​.­nytimes​.­com​/­2018​/­01​/­24​/­business​ /­trump​-­davos​-­follow​-­the​-­money​.­html. Gray, K., and C. N. Murphy. 2013. “Introduction: Rising Powers and the ­Future of Global Governance.” Third World Quarterly 34 (2): 183–193. Hadiz, V. R. and Chryssogelos, A. 2017. “Pop­u­lism in world politics: A comparative cross-­regional perspective.” International Po­liti­cal Science Review, 38(4): 399–411. Hameiri, S., and L. Jones. 2018. “China Challenges Global Governance? Chinese International Development Finance and the AIIB.” International Affairs 94 (3): 573–593. Heer, J. 2018. “Why Conservatives Tolerate Trump’s Crony Capitalism.” New Republic, March 30. Herman, S. 2011. The War on Terror and the Erosion of American Democracy. Oxford: Oxford University Press. Houle, C. 2016. “Why Class In­equality Breeds Coups but Not Civil Wars.” Journal of Peace Research 53 (5): 680–695. ­Human Rights Watch. 2019. “World Report—­United States—­Events of 2018.” https://­w ww​.­hrw​.­org ​/­world​-­report​/­2019​/­country​-­chapters​/­united​-­states. Johnson, D. T., and J. Fernquest. 2018. “Governing through Killing: The War on Drugs in the Philippines.” Asian Journal of Law and Society 5 (2): 359–390. Lancaster, C. 2014. “The Iron Law of Erdogan: The Decay from Intra-­party Democracy to Personalistic Rule.” Third World Quarterly 35 (9): 1672–1690. Lessmann, C. 2016. “Regional In­equality and Internal Conflict.” German Economic Review 17 (2): 157–191.

138 • Salvador Santino F. Regilme Jr.

Lind, Dara. 2018. “What Obama What Obama Did with Mi­grant Families vs. What Trump Is ­Doing.” Vox, June 21. https://­w ww​.­vox​.­com​/­2018​/­6​/­21​/­17488458​/­obama​ -­immigration​-­policy​-­family​-­separation​-­border. Mahathey, A. 2016. “We Need to Talk about the Gender Wealth Gap.” Huffington Post, September 27. Mandel, B. R. 2012. “Why Is the U.S. Share of World Merchandise Exports Shrinking?” Current Issues in Economics and Finance 18 (1). https://­w ww​.­newyorkfed​.­org​ /­research​/­current​_­issues​/­ci18​-­1​.­html. Margon, S. 2017. “Trump’s Damning Global Retreat on H ­ uman Rights.” Foreign Policy, April 6. Matthews, D. 2017. “The GOP Health Bill Is a $600 Billion Tax Cut—­A lmost Entirely for the Wealthy.” Vox, March 7, 1–2. Mickey, R., S. Levitsky, and L. Way. 2017. “Is Amer­i­ca Still Safe for Democracy? Why the United States Is in Danger of Backsliding.” Foreign Affairs 96:20–29. Moyn, S. 2018. Not Enough: ­Human Rights in an Unequal World. Cambridge, MA: Harvard University Press. Nebehay, S. 2017. “US Poised to Withdraw from UN ­Human Rights Council over ‘Anti-­Israel Bias.’  ” In­de­pen­dent, June 6. Norrlof, C. 2018. “Hegemony and In­equality: Trump and the Liberal Playbook.” International Affairs 94 (1): 63–88. Office of the President of the United States, Office of Management and Bud­get. 2017. “Amer­i­ca First: A Bud­get Blue to Make Amer­i­ca ­Great Again.” White House, July 5. https://­w ww​.­whitehouse​.­gov​/­wp​-­content​/­uploads​/­2017​/­11​/­2018​_­blueprint​.­pdf. Parmar, I. 2018. “The US-­Led Liberal Order: Imperialism by Another Name?” International Affairs 94 (1): 151–172. Ralph, J. 2013. Amer­i­ca’s War on Terror: The State of the 9/11 Exception from Bush to Obama. Oxford: Oxford University Press. Ray, J. 2018. “World’s Approval of U.S. Leadership Drops to New Low.” Gallup, January 18. Razin, A., and E. Sadka. 2005. The Decline of the Welfare State. Cambridge, MA: MIT Press. Regilme, S. 2011. “The Chimera of Eu­rope’s Normative Power in East Asia: A Constructivist Analy­sis.” Central Eu­ro­pean Journal of International and Security Studies 5 (1): 69–90. —­—­—. 2013. “It Takes Two to Tango: A Constructivist Analy­sis of EU-­ASEAN Interregional Relations.” In Global Power Eu­rope, vol. 2: Policies, Actions, and Influence of the EU’s Relations, edited by Astrid Boening, Jan-­Frederik Kremer, and Aukje van Loon, 237–252. Heidelberg: Springer. —­—­—. 2014. “Bringing the Global Po­liti­cal Economy Back In: Neoliberalism, Globalization, and Demo­cratic Consolidation.” International Studies Perspectives 15 (3): 277–296. —­—­—. 2018a. “Beyond Paradigms: Understanding the South China Sea Dispute Using Analytic Eclecticism.” International Studies 55 (3): 1–25. —­—­—. 2018b. “The Global Politics of H ­ uman Rights: From ­Human Rights to H ­ uman Dignity?” International Po­liti­cal Science Review 212 (2): 279–290. —­—­—. 2018c. “Does US Foreign Aid Undermine ­Human Rights? The ‘Thaksinification’ of the War on Terror Discourses and the H ­ uman Rights Crisis in Thailand, 2001 to 2006.” ­Human Rights Review 19 (1): 73–95. —­—­—. 2019. “Constitutional Order in Oligarchic Democracies: Neoliberal Rights versus Socio-­Economic Rights.” Law, Culture and the Humanities (May 2019). https://­doi​.­org​/­10​.­1177​/­1743872119854142.

­Human Rights at Risk in the Era of Trump and American Declin • 139

—­—­—. 2021. Aid Imperium: United States Foreign Policy and H ­ uman Rights in Post-­Cold War Southeast Asia. Ann Arbor: University of Michigan Press. Regilme, S., and H. Hartmann. 2018. “Mutual Delegitimization: American and Chinese Development Assistance in Africa.” SAIS Review of International Affairs. https://­hdl​.­handle​.­net​/­1887​/­61074. Regilme, S., and O. Hodzi. 2021. Comparing US and Chinese Foreign Aid in the Era of Rising Powers. International Spectator 56 (2): 114–131. Regilme, S., and J. Parisot. 2017a. “Conclusion: The F ­ uture of Global Cooperation and Conflict.” In American Hegemony and the Rise of Emerging Powers, edited by S. Regilme and J. Parisot, 216–219. New York: Routledge. —­—­—. 2017b. “Introduction: American Hegemony—­Global Cooperation and Conflict.” In American Hegemony and the Rise of Emerging Powers, edited by S. Regilme and J. Parisot, 3–18. New York: Routledge. Renouard, J. 2016. ­Human Rights in American Foreign Policy: From the 1960s to the Soviet Collapse. Philadelphia: University of Pennsylvania Press. Sanders, R. 2018. “­Human Rights Abuses at the Limits of the Law: ­Legal Instabilities and Vulnerabilities in the ‘Global War on Terror.” Review of International Studies 44 (1): 1–22. Shafiq, A. 2013. “The War on Terror and the Enforced Disappearances in Pakistan.” ­Human Rights Review 14 (4): 387–404. Shlapentokh, D. 2004. “Lessons from China: Rus­sian Foreign Policy and Its Implications.” Crime, Law Social Change 41:235–259. Stokes, D. 2018. “Trump, American Hegemony and the ­Future of the Liberal International Order.” International Affairs 94 (1): 133–150. Tansel, C. 2017. “Authoritarian Neoliberalism: ­Towards a New Research Agenda.” In States of Discipline: Authoritarian Neoliberalism and the Contested Reproduction of Cap­i­tal­ist Order, edited by C. Tansel, 1–28. Lanham, MD: Rowman & Littlefield. van Apeldoorn, B., and N. de Graaff. 2014. “Corporate Elite Networks and US Post–­Cold War G ­ rand Strategy from Clinton to Obama.” Eu­ro­pean Journal of International Relations 20 (1): 29–55. Viola, L. 2017. “US-­amerikanische Außenpolitik unter Trump und die Krisen der Globalisierung.” Zeitschrift für Außen-­und Sicherheitspolitik 10 (3): 329–338. Yglesias, M. 2018. “Trump’s Administration C ­ an’t Clean House B ­ ecause Its Leader Is Too Soaked in Scandal.” Vox, July 11. Zürn, M. 2018. A Theory of Global Governance. Oxford: Oxford University Press.

9

The Tyranny of Exceptionalism How the United States Rejects Universal H ­ uman Rights JEFFREY DAVIS On October 27, 2001, federal agents arrested Purna Raj Bajracharya, a Nepalese ­father, as a suspected terrorist in New York simply ­because he was believed to be an “Arab male” video-­recording near a federal building. Even though the Federal Bureau of Investigation (FBI) figured out that Purna was neither Arab nor a terrorist in just over a week, they imprisoned him for three months. Purna was one of more than seven hundred ­people believed to be Muslim or of Arab descent who ­were detained in the weeks following the September 11 terrorist attacks. The FBI imprisoned most at the Metropolitan Detention Center in Brooklyn, New York, ­under extremely harsh conditions. Officials locked the detainees in small cells for more than twenty-­three hours a day and kept the lights on twenty-­four hours a day. They shackled detainees for extended periods, needlessly strip searched them, “slammed them into walls; twisted their arms, wrists, and fin­gers; broke their bones; referred to them as terrorists; threatened them with vio­lence; subjected them to humiliating sexual comments; and insulted their religion”—­all ­because they ­were thought to be Muslim or of Arab origin (Ziglar v. Abbasi 2017, 1853). 140

The Tyranny of Exceptionalism • 141

Purna came to the United States in 1996 on a business visa, but when it expired he stayed on in Queens, New York. He sent the money he earned by working in some of the neighborhood shops to his f­ amily in Nepal. He planned to return to his ­family in Katmandu in late 2001 and before ­doing so he de­cided to film some of the New York sights he had come to love. A ­ fter imprisoning Purna for three months, federal officials deported him. He became part of the class suing federal officials for unlawfully detaining hundreds of men believed to be Muslim or of Arab descent as “terrorist suspects” based solely on their race, religion, or ethnicity. The United States signed and ratified the United Nations Charter in 1945, in which it promised “re­spect for h ­ uman rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (UN Charter 1945, art. 1, para. 3). It was instrumental in drafting and then voted in f­ avor of the Universal Declaration of ­Human Rights (UDHR), which prohibits “arbitrary arrest [and] detention, and inhuman or degrading treatment” (UDHR 1948, art. 9), and requires states to provide an “effective remedy by the competent national tribunals for acts violating . . . ​fundamental rights” (UDHR 1948, art. 8). In 1992 it ratified the International Covenant on Civil and Po­liti­cal Rights (ICCPR), which contains nearly identical provisions. Its Constitution prohibits race discrimination, religious persecution, and groundless imprisonment (U.S. Constitution 1789, 1869, Amendments 1, 4, 5, and 14). Article VI, the Supremacy Clause, requires U.S. courts to regard treaties, such as the UN Charter and the ICCPR, as “the supreme law of the land.” However, in Ziglar v. Abbasi the U.S. Supreme Court ruled that nothing in U.S. law gave Purna and the other plaintiffs the right to hold government officials accountable for violating their rights. In this case, as in numerous o­ thers, the courts allowed U.S. officials to violate fundamental ­human rights with absolute impunity. By refusing to enforce h ­ uman rights law American courts risk condemning ­human rights to aspirational irrelevance. In 2005, U.S. officials took custody of Muammar Gaddafi opponent Abdul Hakim Belhaj and detained him in a secret prison in Bangkok. Belhaj claimed U.S. intelligence personnel hung him by his wrists on hooks in his cell and viciously beat him. The United States then turned him over to Libya, where he was imprisoned and tortured for six more years. Belhaj successfully sued the British government for participating in his rendition, interrogation, and torture, and the Supreme Court of the United Kingdom rejected the government’s appeal (Belhaj v. Straw 2017). The British government argued that the case should be dismissed u­ nder the act of state doctrine b­ ecause it would impermissibly require British courts to sit in judgment of another state—­the United States. The British Supreme Court rejected the government’s argument and ruled that the case should be heard. The court ruled that British officials “enjoy no such immunity ­here, where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good mea­sure, torture

142 • Jeffrey Davis

or per­sis­tent ill-­treatment of an individual” (Belhaj, para. 99). Several judges emphasized that British law has embraced the fundamental rights at issue in the case for centuries. Lord Sumption explained that the unlawful acts Belhaj alleged are “violation[s] of peremptory norms of international law” and inconsistent “with princi­ples of the administration of justice in E ­ ngland which have been regarded as fundamental since the 17th ­century” (para. 278). On May 10, 2018, British prime minister Theresa May apologized to Belhaj for her country’s complicity in the “appalling treatment” he suffered (UK Parliament 2018). ­These two allies, the United Kingdom and the United States, have deeply similar ­legal traditions, and yet dramatically dif­fer­ent post–­Second World War ­human rights jurisprudence. Seventy years before the Belhaj and Ziglar cases ­were de­cided the world stood at a crossroads with one path leading t­ oward the ac­cep­tance of universal h ­ uman rights law. This chapter answers the following three research questions. First, how did Eu­rope and the United States take divergent paths in international h ­ uman rights enforcement a­ fter the Second World War? Second, how has this divergence altered the enforcement of h ­ uman rights in conflict and counterterrorism cases? And fi­nally, as the Eu­ro­pean Court of ­Human Rights (ECtHR) ­faces mounting criticism, do the answers to ­these questions demonstrate the indispensability of an international ­human rights court? In answering t­ hese research questions the chapter shows that race and American exceptionalism—­the belief that the U.S. Constitution and courts are superior to any foreign or international system—­motivated the U.S. marginalization of h ­ uman rights. While policymakers in many states may believe their ­legal and po­liti­cal systems to be superior, American exceptionalism combines the insistence that the American expression of rights is infallible with a superpower’s insistence that other states comply with international standards that the United States is ­free to ignore. As Rosemary Foot explained, exceptionalism is founded on “Amer­i­ca’s perceived special qualities as a nation and superior or hegemonic role in global politics” allowing “US administrations . . . ​to exempt themselves from the rules that ­others are expected to follow” (Foot 2008, 709). This exceptionalism, along with racial politics, continues to fuel American challenges to the global ­human rights regime. The chapter starts with the hopeful beginnings of the postwar ­human rights movement, a movement upon which many Americans worked. Then it describes the forceful backlash that came from U.S. politicians and judges when advocates wielded international h ­ uman rights to challenge American racial oppression. Next it demonstrates that the ­legal doctrines of exceptionalism developed to marginalize international h ­ uman rights in racial equality cases became the foundation for the ­legal endorsement of extraordinary rendition and torture during the Bush administration. It shows how Eu­ro­pean nations took a dif­fer­ent path embracing regional and international ­human rights protections. Fi­nally, it demonstrates that this embrace of regional and international ­human rights systems is crucial to protecting h ­ uman rights from its current challenges.

The Tyranny of Exceptionalism • 143

The United Nations Charter As World War II drew to a close, and the allied liberation of Nazi death camps began to reveal the monstrous atrocities committed during the Reich, several activists and state representatives argued that h ­ uman rights must be part of the new UN Charter. As they gathered to approve the charter in San Francisco, many of the delegates sought to establish an organ­ization that would eliminate the chief cause of the global calamity. Many of the delegates argued that it “was a war made pos­si­ble by the denial of the demo­cratic princi­ples of the dignity, equality, and mutual re­spect for men, and by the propagation, in their place, through ignorance and prejudice, of the doctrine of the in­equality of men and races” (Lauren 1983, 1). However, well before the end of the war, the United States, the United Kingdom, and the Soviet Union ­were already laying the foundation for the polarized postwar order. Two years ­earlier, at the Dumbarton Oaks conference, the three states had rejected China’s proposed inclusion of protections for h ­ uman rights and racial equality in the draft charter. The United States feared international condemnation of the racial segregation and oppression that continued in much of the country. In 1945 delegates from ­these nations still opposed the inclusion of ­human rights language. U.S. delegate John Foster Dulles asked his American del­e­ga­tion colleagues “­whether the ­human rights and nondiscrimination provisions might not create difficulties for ‘the Negro prob­lem in the South’ ” (Lauren 1983, 19). As this suggests, racial discrimination was perhaps the dominant ­factor driving the U.S. opposition to ­human rights in the aftermath of the war. Advocates for h ­ uman rights won a small victory with h ­ uman rights mentioned several times in the charter, but the draf­ters used weak verbs such as “promote,” “encourage,” and “facilitate” instead of mandatory verbs like “­shall,” “protect,” “guarantee,” and “enforce.” More harmful, they also gave in to the age-­old refuge of the oppressor—­national sovereignty—­a force that would help states reject international pressure to re­spect ­human rights. Article 2(7) of the UN Charter allows states to violate ­human rights without interference from the UN: “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.” The internationally renowned l­ egal scholar Philip C. Jessup observed, “We have taught the layman to worship the arch-­fiction of the sovereign state and thereby have built a Maginot line against the invasion of new ideas in the international world, and ­behind that rampart the demagogue and the reactionary are enthroned” (Lauren 1983, 19).

Hopeful Beginnings: The United States and the Universal Declaration of H ­ uman Rights Despite the weak endorsement of ­human rights in the UN Charter, President Harry S. Truman declared: “The Charter is dedicated to the achievement and

144 • Jeffrey Davis

observance of ­human rights and fundamental freedoms. ­Unless we can attain ­those objectives for all men and ­women everywhere—­without regard to race, language, or religion—we cannot have permanent peace and security in the world” (Lauren 1983, 21). In December 1945, he nominated Eleanor Roo­se­velt to be part of the first U.S. del­e­ga­tion to the UN. Roo­se­velt served as chair of the ­Human Rights Commission and strug­gled for two years with opposition from several national delegates and from some U.S. State Department officials in the commission’s work ­toward a declaration of h ­ uman rights. Nevertheless the United Nations voted forty-­eight to zero to adopt the UDHR on December 10, 1948. The UDHR expressly links the preservation of ­human rights to security. The preamble asserts that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the h ­ uman f­ amily is the foundation of freedom, justice and peace in the world.” It acknowledges the lesson learned from the Second World War that “disregard and contempt for h ­ uman rights have resulted in barbarous acts which have outraged the conscience of mankind.” As the Ziglar case discussed above demonstrates, and as I explain further below, the U.S. assault on h ­ uman rights has occurred in the courtrooms as well. Without enforcement in the law, ­human rights risk receding into irrelevance. As the UDHR declared, “­human rights should be protected by the rule of law.” Eleanor Roo­se­velt once argued that h ­ uman rights begin “in small places, close to home—so close and so small that they cannot be seen on any maps of the world . . . ​where ­every man, ­woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination” (Horton 2007). Yet since the birth of the UDHR Roo­se­velt’s home country has steadily diluted the power of international ­human rights law in its own jurisprudence. Eu­ro­pean nations, especially ­those in Western Eu­rope, have chosen a dif­f er­ent path, although often not without challenges, conflict, and controversy. Their domestic courts cite international ­human rights law in making decisions, and forty-­seven Eu­ro­pean nations have subjected themselves, not without occasional complaint, to the authority of a regional ­human rights court.

An Initial Embrace of International ­Human Rights In 1948 the U.S. Supreme Court invalidated the California Alien Land Law that prohibited the U.S. citizen ­children of Japa­nese aliens from owning land. The court ruled in Oyama v. California (1948) that limiting a U.S. citizen’s right to own land based on the status of their parents ­violated the ­Fourteenth Amendment of the U.S. Constitution. Justice Murphy wrote separately to explain that the United States “has recently pledged itself, through the United Nations Charter, to promote re­spect for, and observance of, h ­ uman rights and fundamental freedoms for all without distinction as to race, sex, language and religion” (673). In his view, “The Alien Land Law stands as a barrier to the fulfillment of that national pledge,” and therefore “its inconsistency with the Charter, which has

The Tyranny of Exceptionalism • 145

been duly ratified and a­ dopted by the United States, is but one more reason why the statute must be condemned” (673). Within months of the Oyama decision the Supreme Court struck down private real estate agreements that prohibited the sale or lease of property to African Americans (Shelley v. Kraemer 1948). Advocates in this case, including the U.S. Department of Justice, argued throughout the litigation that judicial enforcement of ­these agreements ­violated the UN Charter (Lauren 1983, 24). As a result of ­these cases advocates began challenging the racially segregated school systems in the South and the District of Columbia, often citing the UN Charter and UDHR. Sei Fujii was born in Japan and moved to the United States when he was twenty-­one years old. He eventually bought property in California, but in 1948 that state took his land b­ ecause its Alien Land Law prohibited aliens who w ­ ere not eligible for citizenship from owning real property in the state (Sei Fujii v. State 1950). (The Oyama decision protected only citizens.) The California Court of Appeals ruled that the Alien Land Law ­violated the UN Charter. Justice Emmet H. Wilson held that when the United States ratified the UN Charter its provisions became part of U.S. law through the Supremacy Clause of the U.S. Constitution. Justice Wilson explained that ­because the obligation to re­spect ­human rights without distinction as to race was now the supreme law of the land, California’s Alien Land Law was invalid. He observed, “Out of the travail of World War II came the concept of ‘re­spect for h ­ uman rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’ as expressed in the Charter of the United Nations” (Sei Fujii 486). Therefore, the court, led by Justice Wilson, struck down California’s Alien Land Law so the United States would “be true to its pledge to the other signatories to the Charter” (486).

Conservative Backlash Conservatives in the United States ­were alarmed that cases citing the charter armed African Americans with the l­ egal power to dismantle the system of racial segregation and oppression. As Justice Wilson wrote in his opinion, “Clearly such a discrimination against a p­ eople of one race is contrary both to the letter and to the spirit of the Charter” (488). David Sloss explained, “In light of the glaring discrepancy between U.S. laws and practices and the international norm against race discrimination, the United States came ­under intense pressure from the international community to abolish race-­based discrimination” (2016, 9) Conservatives responded quickly and forcefully proposing a constitutional amendment that would make treaties subordinate to U.S. state and federal law. Republican senator John Bricker sponsored this amendment that gained wide conservative support including from the American Bar Association. As Jamie Mayerfeld observed, “Southern segregationists, nativist Republicans, and militant anti-­communists joined forces against a common perceived threat” (2017, 115).

146 • Jeffrey Davis

Not only did the UN Charter and cases like Fujii threaten the racial stratification in the United States, they also threated the belief in the superiority of the American Constitution. This belief that the Constitution and U.S. law ­were superior caused its adherents to reject innovation from other national systems and international law—­often referred to as American exceptionalism. Cases like Fujii challenge the “widely shared sentiments about American constitutional identity” in which “Americans have long believed that we have the best constitution in the world” (Sloss 2016, 4). Americans w ­ ere “not prepared to accept the notion that international ­human rights law provided more robust protection against racial discrimination than did our own ­Fourteenth Amendment” (177). The po­liti­cal pressure exerted by the Bricker movement forced courts to retreat from their initial embrace of the UN Charter. As Sloss observed, “The Bricker debate generated an atmosphere in which ­human rights treaties are seen as po­liti­ cal poison” (177). To defeat the Bricker amendment the Eisenhower administration promised not to send any h ­ uman rights treaties for ratification in the Senate.

The United States Turns Its Back on International H ­ uman Rights In 1952, two years ­after the California Court of Appeals de­cided Fujii, the California Supreme Court reversed the lower court’s decision. It ruled that a treaty like the UN Charter “does not automatically supersede local laws which are inconsistent with it u­ nless the treaty provisions are self-­executing” (Sei Fujii v. State 1952, 721). This ruling clearly contravenes Article VI of the U.S. Constitution, which states that “all treaties . . . ​­shall be the supreme law of the land; and the judges in ­every state ­shall be bound thereby.” Nevertheless, the California Supreme Court twisted a nineteenth-­century pre­ce­dent to hold that treaties are meaningless u­ ntil the U.S. Congress passes laws to effectuate them. While some countries, the United Kingdom for example, have this requirement in their constitutional law, the text of the U.S. Constitution requires “judges in e­ very state” to be bound by treaty law. It is blatantly unconstitutional to rule that treaty provisions are not the supreme law of the land requiring judicial enforcement. In fact, as Sloss clearly demonstrates, this was one of the primary goals of drafting the U.S. Constitution (Sloss 2016, 17–40). The result of the Bricker movement and the opposition to h ­ uman rights treaties led to a l­ egal system that repeatedly declines to enforce the most basic h ­ uman rights law, a legislative system that refuses to ratify ­human rights treaties that have been universally embraced, and an executive that callously violates even jus cogens norms of ­human rights. As Sloss concludes, “The net result is that we cling to our faith in the superiority of the U.S. constitutional system, but domestic protection for ­human rights falls short of international standards” (4).

The Tyranny of Exceptionalism • 147

Embracing the Dark Side—­Eradication of ­Human Rights in Counterterrorism Cases On November 30, 2001, John Yoo, deputy assistant attorney general, submitted a ­legal memorandum to President George W. Bush’s chief counsel telling him that the United States did not have to comply with any treaties or customary international law in its campaign against al-­Qaeda and the Taliban. Yoo argued that “even the inclusion of treaties in the Supremacy Clause does not render treaties automatically self-­executing in federal court, not to mention self-­executing against the executive branch,” meaning that if the president wishes “even treaties that have under­gone presidential signature and senatorial advice and consent can have no binding ­legal effect in the United States” (Yoo and Delahunty 2001). Just four months ­later another se­nior Department of Justice (DOJ) official, James Bybee, advised the president that he could kidnap suspected terrorists and transfer them to foreign powers where they may be tortured. The United States ratified the Convention Against Torture (UNCAT) in 1994. Article 3 prohibits states from sending detainees to countries “where t­ here are substantial grounds for believing that [they] would be in danger of being subjected to torture.” Bybee argued, however, that “as a non-­self-­executing treaty, the Torture Convention does not, without implementing legislation, provide a private cause of action in federal court for an individual to oppose his expulsion or extradition” (Bybee 2002b, 23). Yoo also concluded that even if t­ here are self-­executing treaty provisions, “the President has a variety of constitutional powers with re­spect to treaties, including the powers to suspend them, withhold per­for­mance of them, contravene them or terminate them” (Yoo and Delahunty 2001, 29). This hostility ­toward international law led to well-­publicized widespread abuse and torture of detainees. ­These se­nior DOJ l­ awyers concluded that the Central Intelligence Agency’s (CIA) enhanced interrogation techniques, including simulated drowning (the waterboard), slamming detainees against walls, locking them in coffin-­sized boxes for hours sometimes with insects, and extended sleep deprivation, did not violate the UNCAT (Bybee 2002a, 2). Their reasoning is a classic example of the American exceptionalism discussed above. As Sloss explained, Americans refuse to accept the possibility that treaties like UNCAT should control U.S. actions and that treaty law is superior to the U.S. Constitution in its ­legal protections. In their memos DOJ l­awyers concluded that they did not even violate Article 16’s prohibition on “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” (Yoo and Delahunty 2001, 29). When the U.S. Senate ratified the UNCAT it added a reservation requiring the definition of “cruel, inhuman or degrading treatment” to be equivalent to the definition of “cruel and unusual punishments” from the Eighth Amendment to the U.S. Constitution. The DOJ held that “through this reservation the Senate

148 • Jeffrey Davis

intended to limit the scope of United States obligations u­ nder Article l6 [so that it] . . . ​does not apply to aliens outside the United States” (Bradbury 2005). As a result, the CIA’s interrogations began with the approved techniques and quickly descended into even deeper depravity. In but one of many tragic stories, Gul Rahman died in a secret CIA prison called COBALT, or the Salt Pit, north of Kabul, as a result of torture. According to the CIA’s own investigation, interrogators kept Rahman naked for days, repeatedly doused him with cold ­water, subjected him to a “hard takedown” in which he was dragged and shoved naked along a concrete corridor ­until he was battered and bruised. He was shackled overhead for days at a time, and fi­nally chained nearly naked on a concrete floor as temperatures dropped below freezing. Not surprisingly, Rahman died of hypothermia (CIA 2005, paras. 101, 103, 107, 131–133, and 139). No court has held U.S. government officials accountable for the h ­ uman rights abuses committed in counterterrorism operations. U.S. courts have also disregarded international law, especially international h ­ uman rights law, in almost e­ very counterterrorism case. Certainly, countries that have incorporated international ­human rights law into their domestic l­egal systems occasionally violate rights, and some strug­gle to block accountability when this occurs. However, embracing international ­human rights law, especially when acceding to the jurisdiction of a regional ­human rights court, greatly increases the chance that victims ­will be able to vindicate their rights. Eu­ro­pean nations took a dif­fer­ent path a­ fter the Second World War. With the ratification of the Eu­ro­pean Convention of ­Human Rights and accession to ECtHR, Eu­ro­pean nations embraced the promise of the UDHR as part of their own ­legal system. Instead of hoping that the institutions of one’s state w ­ ill obey h ­ uman rights princi­ples, “Eu­ro­pean states are co-­g uardians of ­human rights within each national jurisdiction” (Mayerfeld 2017, 77). As Mayerfeld argued, “Eu­rope demonstrates that states can do far more to strengthen domestic ­human rights by acting in concert than by acting apart” (77). Having learned from the atrocities of World War II, and perhaps from the racist policies of colonial Eu­rope (and con­temporary United States), ­these nations built a system to hold themselves mutually accountable if they strayed from the foundations of ­human rights.

U.S. v. al-­Nashiri Abd al-­R ahim al-­Nashiri was captured in the United Arab Emirates in October 2002. CIA officials transferred him to a secret prison in Thailand, then to Poland, and eventually to Guantanamo Bay. They began using their “enhanced interrogation techniques” the moment al-­Nashiri arrived in Thailand. According to the U.S. Senate Intelligence Committee’s (SSCI) investigation, CIA officials waterboarded al-­Nashiri three times while he was held in Thailand (SSCI 2014, 92). ­A fter moving al-­Nashiri to a secret prison in Poland, a CIA interrogator threatened to shoot him in the head with a handgun, and to capture and

The Tyranny of Exceptionalism • 149

sexually assault his m ­ other (94–96). That same interrogator l­ater threatened al-­Nashiri with a power drill. Sixteen years a­ fter his capture al-­Nashiri still sits in the U.S. prison at Guantanamo Bay awaiting trial. The United States is attempting to try al-­Nashiri in a military commission for his alleged participation in the bombing of the U.S.S. Cole in 2000, which killed seventeen U.S. sailors. The case against al-­Nashiri is built upon evidence gathered through torture. The CIA held him for 1,370 days, rendering him to five dif­fer­ent black-­site prisons, and subjecting him to the harshest of their enhanced interrogation techniques. On several occasions CIA interrogators concluded that al-­Nashiri was compliant and had given all the information he had. On ­those occasions se­nior officials ordered them to continue using abusive techniques (92–96). Prosecutors wish to use al-­Nashiri’s statements made during a clean FBI interrogation (conducted without any abusive techniques) six months ­after he was transferred from CIA custody to Guantanamo (92–96). His ­lawyers argued that this interrogation is tainted by the long-­term torture and abuse al-­Nashiri suffered (U.S. v. al-­Nashiri 2014). As Richard Kammen, one of his former l­ awyers, said, “The statement he gave to the FBI is not voluntary. You ­can’t torture a guy for four years and then stop for six months and say, OK, let’s go with that” (Currier 2014). Prosecutors are also attempting to introduce hearsay evidence from alleged coconspirators detained in Yemen (U.S. v. al-­Nashiri 2014). ­These statements ­were also obtained through torture, according to Mr. Kammen.

The Importance of International ­Human Rights in National Security Cases In a system untethered to international ­human rights law and unsupervised by a regional ­human rights court, U.S. executive officials carried out a program of arbitrary arrest, kidnapping, rendition, and torture with absolute impunity. Courts shielded executive officials with cleverly constructed doctrines like qualified immunity, the state secrets privilege, or the po­liti­cal question doctrine (Davis 2016b). In al-­Nashiri v. Poland (2014) the ECtHR considered w ­ hether Poland ­violated the ECHR when it helped the CIA detain and torture al-­Nashiri at the Stare Kiejkuty black site in Poland. The ECtHR ruled that Poland ­violated Article 3 of the ECHR—­the prohibition against torture and cruel, inhuman, and degrading treatment. It explained that the explicit purpose of the CIA’s enhanced interrogation program ­were, most notably, “to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his w ­ ill to resist, . . . ​to create a state of learned helplessness and dependence” (para. 515). Therefore, “the treatment to which [al-­Nashiri] was subjected by the CIA during his detention in Poland . . . ​amounted to torture within the meaning of Article 3 of the Convention” (para. 515). Poland “knew of the nature and purposes of the CIA’s activities on its territory” and “­ought to have known that, by enabling the CIA to detain such persons on its territory, it exposed them to a serious risk of treatment contrary to the Convention” (para. 517).

150 • Jeffrey Davis

The ECtHR acknowledged that the treatment of detainees inside the black-­site prison was solely the responsibility of the United States. However, it explained, the combination of Articles 1 and 3 of the Convention required Poland to “take mea­sures designed to ensure that individuals within its jurisdiction ­were not subjected to torture or inhuman or degrading treatment or punishment, including ill-­treatment” (para. 517). Article 1 requires states to “secure to every­one within their jurisdiction the rights and freedoms” expressed in the Convention. This reflects a crucial difference between nations that have embraced ­human rights as expressed in the UDHR, and codified in the ECHR. States must not only refrain from violating ­human rights, but also endeavor to protect the rights of t­ hose within their jurisdiction. B ­ ecause U.S. courts have erroneously anchored rights to the U.S. Constitution, they are enforced only as prohibitions. In other words, the rights expressed in the Constitution only restrict government action ­toward ­people within the United States. According to the U.S. Supreme Court the rights in the Constitution do not obligate government officials to do anything whatsoever to protect rights even when they are fully engrossed in the situation in which rights are v­ iolated. As a result, across U.S. courts ­there is a pattern of complete disregard of the concept of positive obligations on the state. For instance, state child welfare officials ­were not obligated to protect a child’s rights even though they w ­ ere supervising him and knew his ­father was brutally beating him (DeShaney v. Winnebago County 1989). Similarly, state ambulance d­ rivers ­were held to have ­violated no rights when they declined to drive two miles to the nearest hospital to save the life of a shooting victim (Jackson v. Schultz 2005, 590). And state school officials ­were found not to have v­ iolated the rights of a child when they returned him to a dormitory with another student who repeatedly sexually abused him (Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys 2012, 854). In contrast to this, in the al-­Nashiri case the ECtHR ruled that Poland ­violated Article 3 by failing to promptly and completely investigate allegations of torture committed within its borders. Al-­Nashiri also claimed Poland v­ iolated his Article 5 rights to be f­ ree from arbitrary detention. The ECtHR pointed out that “the rationale ­behind the [CIA’s extraordinary rendition] programme was specifically to remove ­those persons from any l­egal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the U.S. Constitution and international law against arbitrary detention” (al-­Nashiri para. 530). Therefore, ­because “Polish authorities, by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-­treatment and conditions of detention,” Poland also ­violated Article 5 of the Convention. The ECtHR held that ­because Poland allowed al-­Nashiri to be transferred out of Poland by the CIA, it subjected him to the “real risk that his trial before the military commission would amount to a flagrant denial of justice” (para. 567). This was especially true ­because the commissions accepted

The Tyranny of Exceptionalism • 151

evidence gathered through torture. According to the ECtHR, “No ­legal system based upon the rule of law can countenance the admission of evidence—­ however reliable—­which has been obtained by such a barbaric practice as torture” (para. 564). It explained that the “trial pro­cess is a cornerstone of the rule of law” and “torture evidence irreparably damages that pro­cess; it substitutes force for the rule of law and taints the reputation of any court that admits it” (para. 564). According to the ECtHR Poland ­violated al-­Nashiri’s right to life by allowing him to be transferred to a system where it was foreseeable he would be subject to the death penalty. It also ­violated his rights ­under Article 13 of the Convention. This article guarantees an effective remedy whenever one’s rights are ­violated even if the violation was committed by someone acting in their official capacity. Poland was obligated to allow al-­Nashiri to seek a civil or criminal remedy against t­ hose who v­ iolated his rights even if they ­were members of the Polish government. The ECtHR had vindicated al-­Nashiri’s rights and his case was not an isolated judgment (El-­Masri v. the Former Republic of Macedonia 2012; Abu Zubaydah v. Lithuania 2018; Abu Zubaydah v. Poland 2013).

Conclusion The ECtHR’s decisions in cases like al-­Nashiri demonstrate point by point the ­human rights ­violated by the U.S. program of extraordinary rendition and enhanced interrogation. Moreover, the court repudiates the doctrines of impunity erected by U.S. courts. The ECtHR has repeatedly held that victims of torture and arbitrary detention have the right to a remedy even if t­ hose responsible are government officials—­officials who cannot claim qualified immunity h ­ ere. As Mayerfeld explained, when some Eu­ro­pean nations colluded with the U.S. extraordinary rendition program “­there can be ­little doubt that regional ­human rights institutions prevented what would other­wise have been a worse unraveling of ­human rights” (2017, 7). Domestic courts in Eu­rope have also found their own officials culpable for violating international h ­ uman rights law when cooperating with U.S. abuses. For instance, in A. v. Home Secretary (2005), the United Kingdom’s highest court held that torture evidence gathered by other countries could not be used in a terrorism-­related immigration proceeding. Of course, Eu­ro­pean countries do violate ­human rights law in counterterrorism operations, but unlike in the United States, the ECtHR is ­there as a safety net—­often criticized, frequently controversial—­but a safety net nonetheless. No judicial system is infallible, but examining the U.S. experience with counterterrorism cases is a valuable lesson on the indispensability of the ECtHR. The ECtHR cases also demonstrate the importance of globalism in the protection of h ­ uman rights. As t­ hese cases make clear the globalized nature of security strategies has aided the enforcement of ­human rights. The United States often relies on foreign partners when it conducts counterterrorism operations,

152 • Jeffrey Davis

so even when it successfully erects barriers to accountability at home, courts abroad can enforce h ­ uman rights law. This has the effect of pressuring the United States into compliance with ­human rights princi­ples it might other­wise ignore or risk losing its Eu­ro­pean partners. An ­earlier study of this phenomenon revealed that ­human rights NGOs litigate t­ hese cases in the ECtHR and in other national courts in part to constrain U.S. abuses (Davis 2018). The United States was founded on the idea that ­people are born with inherent ­human rights. Its Declaration of In­de­pen­dence regarded this as a self-­evident truth. However, the United States’ racial oppression, exceptionalism, and security priorities diminished and sometimes obliterated its re­spect for h ­ uman rights. As the ink dried on the UDHR, po­liti­cal forces in the United States sought to undermine its call for ­human rights and racial equality, and to anchor itself to its eighteenth-­century Constitution. While h ­ uman rights are po­liti­cal (as well as l­egal), in other democracies they are far more po­liti­cal in the United States. The po­liti­cal nature of the U.S. judiciary, American exceptionalism, and continued racial oppression and marginalization aggravate this politicization of ­human rights. The fact that even torture is a left-­right ideological issue in the United States, with 71 ­percent of Republicans supporting it compared to only 31 ­percent of Demo­crats, is a clear sign of this phenomenon (Tyson 2017). Even though h ­ uman rights are also po­liti­cal in Eu­rope, and the ac­cep­tance of the ECtHR an increasingly po­liti­cal issue, by signing on to ­human rights treaties including the ECHR, and by submitting to the jurisdiction of the ECtHR, Eu­ro­pean nations have endorsed the truth that ­human rights are enforceable princi­ples of law. American opposition to international h ­ uman rights is one of the primary reasons h ­ uman rights are at risk. This damage has been ongoing. However, while the Cold War required U.S. officials to at least give lip ser­vice to ­human rights, ­after the 2001 terrorist attacks Bush administration officials described rights as impeding their war on terror strategies. The administration even equated rights enforcement with terrorism. As its 2005 National Security Strategy stated, “Our strength as a nation ­will continue to be challenged by ­those who employ a strategy of the weak using international fora, judicial pro­cesses and terrorism” (U.S. Department of Defense 2005). Opposition to h ­ uman rights became an overt l­ egal strategy, as the torture memos and rendition cases demonstrate. The Trump administration took this opposition even further, declaring that combating terrorism requires the reopening of secret prisons, the use of torture on terrorism suspects, and the continued use of the prison at Guantanamo Bay. This administration’s disregard for h ­ uman rights protections and treaty obligations in its immigration policies are particularly harmful to the integrity of international ­human rights. In 1979 Professor Louis Henkin observed that “in the cathedral of ­human rights, the United States is more like a flying buttress than a pillar—­ choosing to stand outside the international structure supporting the international h ­ uman rights system, but without being willing to subject its own

The Tyranny of Exceptionalism • 153

conduct to the scrutiny of that system” (Koh 2007). The Trump administration corroded even this external support, and it ­will be challenging for President Biden to rebuild it. And as this chapter makes clear, rebuilding it is insufficient. He must, as he is fond of saying, build it back better.

References Abu Zubaydah v. Lithuania, Eur. Ct. H.R. Application no. 46454/11 (2018). Abu Zubaydah v. Poland, Eur. Ct. H.R. Application no. 7511/13 (2013). al-­Nashiri v. Poland, ECtHR, Application no. 28761/11, July 24 (2014). A v. Home Secretary (No 2), UKHL 71 (2005). Belhaj v. Straw; Rahmatullah (No. 1) v. Ministry of Defence, UKSC 3 (2017). Bradbury, S. G. 2005. “Application of U.S. Obligations u­ nder Article 16 of the Convention Against Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees.” May 30. https://­w ww​.­thetorturedatabase​.­org​ /­fi les​/­foia ​_­subsite​/­7​.­pdf. Bybee, J. S. 2002a. “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency.” August 1. https://­int​.­nyt​.­com​/­data​/­int​-­shared​/­nytdocs​ /­docs​/­151​/­151​.­pdf. —­—­—. 2002b. “The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations.” March 13. Central Intelligence Agency. 2005. “Inspector General, Report of an Investigation, Death of a Detainee.” April 27. https://­assets​.­documentcloud​.­org​/­documents​ /­3214829​/­CIA​-­IG​-­Report​-­Gul​-­R ahman​-­NEWLY​-­DECLASSIFIED​.­pdf. Currier, C. 2014. “Gitmo L ­ awyer: The Torture Pervades Every­thing.” The Intercept, December 12. https://­theintercept​.­com​/­2014​/­12​/­12​/­torture​-­pervades​-­everything​ -­g uantanamo​-­war​-­court​-­trials​/­. Davis, J. 2016a. “Equality of Arms in International Security Operations—­International Law in Terrorism Prosecutions.” Journal of Conflict & Security Law 21 (1): 69–91. —­—­—. 2016b. “Uncloaking Secrecy: International H ­ uman Rights Law in Civil Terrorism Cases.” ­Human Rights Quarterly 38 (1): 58–85. —­—­—. 2018. “NGOs in Terrorism Cases: Balancing Security and International H ­ uman Rights Law.” In Non-­state Actors and International Obligations, edited by James Summers, 459–480. Leiden: Brill. DeShaney v. Winnebago County, 489 U.S. 189 (1989). Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys, 675 F.3d 849, 854 (2012). El-­Masri v. the Former Republic of Macedonia, Eur. Ct. H.R., App. No 39630/09 (2012). Foot, R. 2008. “Exceptionalism Again: The Bush Administration, the ‘Global War on Terror’ and ­Human Rights.” Law and History Review 26 (3): 707–725. Horton, S. 2007. “Roo­se­velt on ­Human Rights in the Small Places.” Harper’s, December 22. https://­harpers​.­org​/­blog​/­2007​/­12​/­roosevelt​-­on​-­human​-­rights​-­in​-­the​-­small​-­places​/­. International Covenant on Civil and Po­liti­cal Rights. 1992. Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005). Koh, H. H. 2007. “40th Anniversary Special Issue: Dedicated to Columbia University Professor Louis Henkin: The ­Future of ­Human Rights Law: A Tribute to Louis Henkin.” Columbia H ­ uman Rights Law Review 38 (1). Lauren, P. G. 1983. “First Princi­ples of Racial Equality: History and the Politics and Diplomacy of ­Human Rights Provisions in the United Nations Charter.” ­Human Rights Quarterly 5 (1): 1–26.

154 • Jeffrey Davis

Mayerfeld, J. 2017. The Promise of H ­ uman Rights: Constitutional Government, Demo­ cratic Legitimacy, and International Law. Philadelphia: University of Pennsylvania Press. Oyama v. California, 332 U.S. 633 (1948). Sei Fujii v. State, 217 P.2d 481 (1950). Sei Fujii v. State, 38 Cal.2d 718, 721 (1952). Shelley v. Kraemer, 334 U.S. 1 (1948). Sloss, D. L. 2016. The Death of Treaty Supremacy. Oxford: Oxford University Press. Tyson, A. 2017. “Americans Divided in Views of Use of Torture in U.S. Anti-­terror Efforts.” Pew Research Center, January 26. https://­w ww​.­pewresearch​.­org​/­fact​-­tank​ /­2017​/­01​/­26​/­americans​-­divided​-­in​-­views​-­of​-­use​-­of​-­torture​-­in​-­u​-­s​-­anti​-­terror​-­efforts​/­. UK Parliament, House of Commons. 2018. “Belhaj and Boudchar: Litigation Update, Statement of the Attorney General.” 640 (926–27), May 10. U.S. Department of Defense. 2005. “The National Defense Strategy of the United States of Amer­i­ca.” March 1. http://­w ww​.­comw​.­org​/­qdr​/­f ulltext​/­0503nds​.­pdf. U.S. Senate Select Committee on Intelligence (SSCI). 2014. “Report on CIA Interrogation.” http://­w ww​.­feinstein​.­senate​.­gov​/­public​/­index​.­cfm​/­senate​-­intelligence​ -­committee​-­study​-­on​-­cia​-­detention​-­and​-­interrogation​-­program. US v. al-­Nashiri. 2014. “Defense Motion to Suppress Custodial Statements to Federal Agents.” November 25. https://­w ww​.­mc​.­mil​/­Portals​/­0​/­pdfs​/­a lNashiri2​/­A l%20 Nashiri%20II%20(AE327)​.­pdf. Yoo, J. C., and R. L. Delahunty. 2001. “Memorandum for Alberto R. Gonzales Counsel to the President,” November 30. Ziglar v. Abbasi, 137 S.Ct. 1843, 1853 (2017).

Part 5

Rethinking the F­ uture of H ­ uman Rights

10

Natu­ral Law and the ­Future of ­Human Rights HANS-­M ARTIEN TEN NAPEL

At the end of May 2019, the U.S. Department of State announced the establishment of a Commission on Unalienable Rights. The commission’s purpose was to “provide the Secretary of State advice and recommendations concerning international h ­ uman rights ­matters. The commission would provide fresh thinking about h ­ uman rights discourse where such discourse has departed from our nation’s founding princi­ples of natu­ral law and natu­ral rights.”1 Almost immediately, reactions to the announcement w ­ ere critical (see, e.g., Toosi 2019). The commission was said to constitute a threat to ­human rights in general and to LGBTQ and w ­ omen’s rights in par­tic­u­lar. Depending on the commission’s approach, this might indeed have been the case to a greater or lesser extent. On the ­whole, however, the establishment of the commission must be regarded as a positive development, or so this chapter argues. The history of modern h ­ uman rights, such as the freedoms of religion, expression, and assembly and association, goes back approximately two hundred fifty years to the idea of constitutional government securing natu­ral rights. As this notion has faded over time, with a view to the ­future of fundamental freedoms, it is worthwhile bringing it back into focus. To the extent that The Federalist Papers are the first modern constitutional treatise, the Found­ers have stood at the basis of current liberal and demo­cratic 157

158 • Hans-­Martien ten Napel

o­ rders. At the same time, many of ­these Found­ers somehow remained connected to traditional constitutionalism through the diverse intellectual tradition of natu­ral law and natu­ral rights discoverable by ­human reason. As such, the so-­called modern constitutionalism remained compatible with the “cultural unwritten constitution” that exists in the hearts and minds of the ­people. This unwritten cultural constitution has been defined by the American po­liti­cal theorist Russell Kirk (1918–1994) as “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social real­ity and sustain the formal constitution” (as cited in Frohnen and Carey 2016, 8). The implication is not that the foundation for con­temporary constitutional ­orders cannot evolve at all. Generally speaking, though, it is not a good idea to throw out something old before one has found a suitable replacement. As this is what happened in the case of ­human rights, turning around halfway is to be preferred to continue r­ unning t­ oward the dead end that some authors are predicting (see, e.g., Hopgood 2013). If this was the idea b­ ehind the Department of State’s Commission on Unalienable Rights, the commission has not necessarily been an unwelcome initiative (Ten Napel 2019). On the contrary, the effort to reconnect h ­ uman rights discourse with the natu­ral law and natu­ral rights tradition should continue now that the commission released its final report on August 26, 2020.2 In light of the above, the central question that this chapter attempts to answer is why h ­ uman rights are currently at risk not just outside but also within the West, and how the natu­ral law and natu­ral rights tradition can contribute to remedying this situation? In order to answer the first part of this question, the following section begins by recalling how, in the twentieth c­ entury, and in par­tic­u­lar since the Second World War (1940–1945), the Western constitutional practice generally has departed from the modern constitutionalism. This con­temporary constitutional practice as a ­whole brings about an undemo­cratic form of liberalism that has contributed to the populist backlash that we are witnessing in both Eu­rope and the United States t­ oday. The third section then focuses specifically on ­human rights. In the context of this chapter, perhaps the most critical implication of modern constitutional practice is that ­human rights are perceived no longer as natu­ral rights that precede the state but as positive rights. As a result, h ­ uman rights have become “debased.” Also, the expansion of ­human rights contributes to the undemo­cratic liberalism referred to above. Turning to the second part of the question, the fourth section next argues that the ­future of h ­ uman rights lies in returning to its roots. Even though the question is frequently raised about ­whether natu­ral law can serve as the foundation for genuinely universalistic h ­ uman rights, t­ here appears to be no obvious alternative available that can solve the vari­ous prob­lems that currently confront ­human rights. To the extent that the natu­ral law and natu­ral rights tradition aims

Natu­ral Law and the ­Future of ­Human Rights • 159

at conforming with ­human nature, it is realistic and nonideological, rather than ideological and therefore unrealistic as is often claimed. The chapter ends with a sobering concluding remark. No quick fixes are available as a return to the roots of ­human rights may take generations to materialize with no success guaranteed.

The Flawed Self-­Image of Liberal Democracies Modern Constitutionalism In a noteworthy journal article, po­liti­cal scientist Yascha Mounk (2018b) suggests that Western countries may have a flawed self-­image. ­These countries tend to regard themselves as liberal democracies. Historically speaking, t­ here is, of course, considerable ground for such a self-­image. Ours, in the West, has for the past two hundred fifty years or so been a remarkable system of government. It is currently, indeed, commonly known as liberal democracy. The moment that liberal democracy took root in the West can be determined relatively precisely. Constitutionalism, that is, reflection on what a good constitution would look like, goes back as far as Plato and Aristotle (McIlwain 1940). It was not ­until the seventeenth and eigh­teenth centuries, however, that a more traditional form of constitutionalism gradually gave way to modern constitutionalism. More specifically, The Federalist Papers (1787–1788) can be regarded as the first modern constitutional treatise (Kinneging 2018, 305). What makes The Federalist Papers a modern constitutional text is the ideal of self-­government it expresses. Self-­government stands for the idea that government is based solely on the consent of the ­people, an idea that the same ­people must support to materialize (Miller 2013). Of course, the notion of democracy goes back to the time of the ancient Greek city-­states and, arguably, even further in history (Keane 2009). Still, the idea had never been applied to a country the size of the United States. Moreover, several features w ­ ere added to democracy, notably the rule of law, to make the American form of government “republican” rather than demo­cratic per se. It is pos­si­ble to argue that this republican form of government cannot simply be equated with liberal democracy as it developed in the twentieth ­century, and in par­tic­u­lar since the Second World War (1940–1945). One indication that the term “liberal democracy” ­ought not too easily be applied to the original modern constitutionalism that developed ­toward the end of the eigh­teenth ­century is that the term was not used at the time of the American founding. In this chapter, I nevertheless choose to use liberal democracy as a synonym for modern constitutionalism. Although the modern constitutionalism was indeed modern, at least in the United States, many of its found­ers somehow remained connected to traditional constitutionalism through the natu­ral law and natu­ral rights tradition (West 2017). This tradition can be described as “a complex and many-­sided body of moral and po­liti­cal thought. It is unified, however, by an agreement as to the

160 • Hans-­Martien ten Napel

natu­ral (as distinguished from conventional or man-­made) character of princi­ ples of right and wrong, and of justice and injustice. Phi­los­o­phers and statesmen who think and act within this shared understanding agree that the standards that ­ought to guide the ordering of po­liti­cal and social life are accessible to ­human reason.”3

Constitutional Practice During the twentieth c­ entury, and in par­tic­u­lar since the Second World War, the Western constitutional practice has at first sight seemingly successfully adapted itself to changing national and international circumstances. Five main developments can be identified, of which the codification of a growing number of ­human rights is one. The other four, which are necessary to briefly deal with ­here to put the developments concerning ­human rights into perspective, are the rise of the administrative state; the spread of the idea of Eu­ro­pean and global governance; the increase of judicial power and other changes in the application of the doctrine of separation of powers; and the resulting transformation of the functioning of representative democracy. The rise of the administrative state started already around the beginning of the twentieth ­century. In the United States, it coincides with the so-­called Progressive Era (1890–1920). On the one hand, it can be interpreted as a necessary further step t­ oward the realization of the ideal of self-­government. Thanks to the expanded role of government in society, more citizens are now able to exercise their constitutional rights meaningfully. On the other hand, the accompanying administrative state is by now also sometimes perceived as finding itself in a legitimacy crisis (cf. Wallach 2016; Metzger 2017; see, however, Sunstein and Vermeule 2020). Reasonably much the same holds for the spread of the idea of Eu­ro­pean and global governance. Eu­ro­pean integration, in par­tic­u­lar, has undoubtedly had its positive sides. As a result, despite the Cold War (1947–1991), the Eu­ro­pean continent has known a prolonged period of relative peace and prosperity. However, in recent years, the effects of transnationalism on national sovereignty have come ­under more scrutiny (De Búrca 2018; Hazony 2018). That is also, more generally, the case with the idea of global governance. The role of international financial and other institutions, such as the World Trade Organ­ization (WTO), is putting po­liti­cal decision-­making pro­cesses ­under stress. As Martti Koskenniemi (2019, 13) puts it, “modern government is just a local version of an international negotiation. The environment minister represents an environmental knowledge that is utterly global; the trade ministry is a kind of local bureau of the WTO or the Bretton Woods system—­and the justice minister w ­ ill remind every­one of the protections the ­human rights treaty system offers to ­women, c­ hildren, refugees, the disabled and so on.” ­Human rights, with which the next section deals more extensively, indeed constitute an equally crucial component of Western constitutional practice.

Natu­ral Law and the ­Future of ­Human Rights • 161

Thus, since the Second World War, several international and regional codifications have taken place. Moreover, in addition to the more traditional civil and po­liti­cal rights, social and economic rights have been developed. In recent de­cades, also so-­called third-­generation rights are identified, such as environmental rights. At the same time, historians have already started to raise the question of ­whether h ­ uman rights may, with the advantage of hindsight, not prove to have been a more temporary phenomenon than initially thought (Moyn 2010). Developments such as the three highlighted above have resulted in changes in the application of the doctrine of separation of powers (Ten Napel and Voermans 2016; Ackerman 2017). The position of the executive vis-­à-­vis the legislature has been significantly strengthened. Perhaps the most notable phenomenon that happened subsequently is the increase in judicial power (Hirschl 2004). ­Today, judicial review is widely perceived as the primary means to protect citizens against the expanding (administrative) state. It is, of course, pos­si­ble to argue that the emphasis has come to lie more on the princi­ple of checks and balances than on a strict separation of powers. Still, criticisms are now becoming widespread of an “Imperial Presidency,” among other ­things (see already Schlesinger 1973). Fi­nally, the functioning of representative democracy has changed as well. The definition of democracy has become a more material one b­ ecause of the stronger role of courts, among other t­ hings. On the one hand, this can be welcomed as proof that democracy has slowly but steadily become more mature. On the other hand, doubts are pos­si­ble w ­ hether such a democracy is still able to sufficiently legitimate government among the population.

A New Theory of Legitimacy? One of only a few authors who have recently attempted to develop such a theory of legitimacy is po­liti­cal theorist Jacob Weinrib. According to Weinrib, the above five trends have, in combination, given birth to a “modern constitutional practice,” of which rights constitute a significant component: “a constitution that establishes the terms for the lawful exercise of all public authority; a set of constitutional rights that bind all branches of government; an accessible judicial body authorized and obligated to respond to constitutional complaints by reviewing the conformity of government conduct to constitutional norms; substantive constraints on the amending power that preserve the essentials of the constitutional order; and doctrines that determine both the protections that constitutional rights afford and the limits to which rights are subject in reference to the overarching idea of ­human dignity” (2016, 3). Although ­human dignity is a concept that initially developed within dif­fer­ ent religious and philosophical traditions, Weinrib is not in f­ avor of referring to ­these traditions somehow in his effort to legitimate the modern constitutional practice. He believes such traditions to be illiberal (2016, 5). Instead, Weinrib develops his own “abstract concept of ­human dignity as in­de­pen­dence, that is,

162 • Hans-­Martien ten Napel

the right to interact with o­ thers on terms of equal freedom” (2016, 7). The task he sets out to achieve in his book becomes then “to show how the concept justifies modern constitutional practice and generates the duty of all ­legal systems to bring themselves within its par­ameters” (2016, 10). Despite Weinrib’s excellent starting point of ­human dignity, his approach risks putting too much emphasis on Western constitutional practice as it has developed, which he, a­ fter all, seeks to illuminate (2016, 3). As a result, his book comes to resemble the modern constitutional practice itself, which does not, at least not explic­itly, appear to have originated from par­tic­u­lar anthropology but follows from a relatively substantive conception of liberal democracy instead. ­A fter having formulated the defining characteristics of liberal democracy, such as liberty, equality, and fraternity in the time of the French Revolution (1789), modern constitutional practice determines from case to case how much room remains for the exercise of natu­ral rights such as the right to freedom of religion or belief, the right to freedom of expression, and the right to freedom of assembly and association.

Undemo­cratic Liberalism The fact that modern constitutional practice thus raises the question if, and to what extent, the ideal of self-­government is still realized is the reason why Mounk suggests that Western countries have a flawed self-­image. Western governments are currently sometimes concerned that some member states of the Eu­ro­pean Union, notably Hungary and Poland, are developing in the direction of illiberal democracies. In real­ity, however, many Western countries have themselves turned into exponents of a rather undemo­cratic form of liberalism. As Mounk explains, “Such systems are liberal, yet fail to live up to democracy’s promise to let the ­people rule. Although they (mostly) re­spect the rule of law and (largely) protect the rights of minorities, they fail to translate popu­lar preferences into public policy” (2018b, 100). What is more, according to Mounk, Western countries are confronted with an “antidemo­cratic dilemma.” Although it is clear that undemo­cratic liberalism is not desirable from the point of view of their founding theories, notably the ideal of self-­government, ­there is not much that ­these countries can do about it. Only undemo­cratic liberalism can yield policy outcomes such as economic growth and public safety that politicians need to stay in office (2018b, 100).

­Human Rights Although Mounk himself does not explic­itly refer to h ­ uman rights, the way the international h ­ uman rights system that came about a­ fter the Second World War has developed only reinforces the undemo­cratic liberalism that has increasingly come to characterize Western countries.

Natu­ral Law and the ­Future of ­Human Rights • 163

This argument has recently been made in a book by Aaron Rhodes, titled The Debasement of ­Human Rights (2018; cf., e.g., Hannum 2016; Myers 2017, 2019). Rhodes is himself a (former) ­human rights activist, but his work fits in well with the thesis of an academic like Mounk. As Rhodes points out, the origins of ­human rights lie in the same philosophy of natu­ral law and natu­ral rights that undergirds modern constitutionalism as a ­whole. The Universal Declaration of ­Human Rights of 1948, however, already mixed natu­ral rights with social and economic rights. Although this raised the status of ­these positive rights, it si­mul­ta­neously led to a debasement of natu­ral rights as the latter now came to be regarded as similar in status to social and economic rights. According to Rhodes, “Economic and social rights such as the ‘right to social security’ and the ‘right to an adequate standard of living’ are not simply dif­fer­ent kinds of h ­ uman rights; they are demonstrably not h ­ uman rights at all, for they are based on dif­fer­ent princi­ples. They are rights granted by states, reflecting po­liti­cal values that are not intrinsic to h ­ uman beings; they are collective, not individual rights; they embody po­liti­ cal values and goals, and do not accord with the essential nonpo­liti­cal and nonpartisan character of au­then­tic, universal ­human rights. They derive from par­tic­u­lar po­liti­cal interests and passions, while au­then­tic h ­ uman rights are based on our common ­human nature and on reason, the basis of their universality” (2018, 2). As Rhodes points out, for quite some time, the effects of the debasement of natu­ral rights w ­ ere ­limited as, for example, dissidents in the Soviet Union stressed how classical freedom rights on the one hand and social and economic rights on the other could not be wholly juxtaposed. In 1993, during the UN’s World Conference on ­Human Rights held in Vienna, however, the doctrine of “indivisibility” between the two categories of ­human rights set the stage for their continuous conflation ever since. Thus, Article 5 of the “Vienna Declaration and Programme of Action. ­Adopted by the World Conference on H ­ uman Rights in Vienna on 25 June 1993” reads as follows: “All ­human rights are universal, indivisible and interdependent and interrelated. The international community must treat h ­ uman rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and vari­ous historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their po­liti­cal, economic and cultural systems, to promote and protect all h ­ uman rights and fundamental freedoms.”4 Although the idea of interdependence of ­human rights was already a feature of the Universal Declaration of H ­ uman Rights (Whelan 2010), its reaffirmation in 1993 was indicative of what was to come. As a result, according to Rhodes, “­human rights, detached from their roots in natu­ral law and natu­ral rights, have been transformed from moral princi­ples that affirm our freedom into beliefs

164 • Hans-­Martien ten Napel

about what p­ eople need from governments, beliefs that undermine the essential moral agency of the person and encourage de­pen­dency on governments and global bureaucracies” (2018, 15). The attention that goes out to realizing the expanding number of ­human rights in the West distracts attention from even the worst offenders of fundamental ­human rights elsewhere in the world. To quote Rhodes one last time, “The protection of basic freedoms is relegated to a small corner of the sprawling ­human rights system, which regulates more and more areas of activity. The concept of h ­ uman rights has been swept into a broad river of campaigns for social justice, global economic development, environmental protection, multiculturalism, tolerance, access to ­water and sanitation, and more. Natu­ral rights and freedoms are viewed as but one ele­ment in a vast web of conditionality, as means to other ends, or even as obstacles to the enjoyment of other ­human rights” (2018, 224). ­Human rights, thus, also run the risk of becoming “weaponized” (Clifford 2019). More relevantly for this chapter, the growth of the category of h ­ uman rights implies that t­ hese rights increasingly bind both executives and legislatures in Western countries. In addition to the second-­generation rights already referred to, third-­generation h ­ uman rights of a collective nature, such as environmental rights, are identified as mentioned ­earlier as well. In many cases, ­these second-­ and third-­generation rights require not state abstention but active interventions by the state in order to achieve par­tic­u ­lar policy goals. Although parts of the Western electorates often support ­these policy goals, ­these are not necessarily majorities. Meanwhile, ­human rights significantly narrow the space that was traditionally reserved for politics (Tasioulas 2019a, 2019b; cf. Sumption 2019). As a result, h ­ uman rights run the risk of increasingly being perceived as enemies of the ­people instead of their natu­ral allies. Although not entirely new, ­these criticisms have now turned into a veritable constitutional proj­ect (Blokker 2019). ­Human rights are also at risk ­because of a dif­fer­ent, be it related, development. In his nearly decade-­old book, The Global Model of Constitutional Rights, Kai Möller (2012, chap. 1) paints a fascinating picture of the evolution of h ­ uman rights protection in the postwar period. First, t­ here has been an inflation of t­ hese rights. This phenomenon was referred to above in a critical sense. Möller, to the contrary, uses it to describe the high rate of increase in the number of constitutional rights neutrally. Second, t­ hese rights have acquired a horizontal effect. Thus, they apply not just to the vertical relationship between government and citizens but also relationships among citizens and their organ­izations. Third, it has been recognized that h ­ uman rights can also entail positive obligations for states; states are obliged to guarantee t­ hese rights actively. Increasingly, this includes socioeconomic rights. Fourth and fi­nally, the doctrines of “balancing” and proportionality have gained weight. A ­ fter all, as more and more rights have come into being and their scope has widened, a balancing act between t­ hese rights and other interests w ­ ill

Natu­ral Law and the ­Future of ­Human Rights • 165

increasingly have to occur. The princi­ple of proportionality can serve well in this re­spect. According to Möller, this evolution of ­human rights protection started in Eu­rope, notably at the German Constitutional Court and the Eu­ro­pean Court of ­Human Rights. From t­ here, it has spread to Central and Eastern Eu­ro­pean countries, Canada and South Africa. Globally, the United States is the exception that as always confirms the rule. This country has so far, comparatively speaking, retained the characteristics of what might be called the philosophical model of constitutional rights. This model was dominant u­ ntil the protection of fundamental rights became internationally codified in the postwar period. According to this traditional model, only certain “natu­ral rights” qualify as constitutional rights. ­These rights apply exclusively in the relationship between government and citizens and predominantly lead to negative or abstention obligations for the state. Fi­nally, as a rule, they have an elevated status over other, “ordinary” interests,” so that ­there is no need to address questions of balancing weighing and proportionality, or at least less so. Möller (2019) is not critical about what he observes. In the way outlined above, ­human rights have developed into a general duty of justification for government intervention in citizens” sphere of freedom. Such a “culture of justification” ultimately leads to the question of w ­ hether or not h ­ uman rights as a separate category of interests retain their right to exist, however. Thus, we have come a long way from the founding idea of modern constitutionalism, that is, constitutional government as a means of securing natu­ral rights, to a situation in which ­human rights are increasingly perceived as a threat to the same constitutional government. The previous section has made clear that the way that the international ­human rights system has developed is not the only change that modern constitutional practice has brought about. Like other changes, such as the rise of the administrative state, its intellectual roots lie in the Progressive Era. Although it would lead us too far ­here to elaborate this point, it is vital to notice that American Progressivism questioned w ­ hether several ideas ­behind the founding still held in the twentieth ­century, notably the natu­ral law and natu­ral rights tradition.

Back to the Roots? Turning now to the second part of the central question this chapter aims to answer, it should be pointed out, to begin with, how like other forms of government, and prob­ably even more so, liberal democracy needs to be regularly checked to stay in shape. Liberal democracy has faced significant challenges before. Looking back at its history of nearly two and a half centuries, this held, for example, for the United States at the time of the Civil War (1861–1865) and for much of Eu­rope during the 1930s (Galston 2018). T ­ oday, it seems like we have once again

166 • Hans-­Martien ten Napel

entered a period in which the maintenance of liberal democracy is desirable (Mounk 2018a). Only some thirty years ago, ­after the Berlin Wall fell in 1989, its ­future looked bright. Not only had liberal democracy strengthened its presence in Southern Eu­rope again during the 1970s, but it was now also considered a ­viable model for Central and Eastern Eu­rope and possibly even for other parts of the world than the West, where it had taken root first. Samuel Huntington’s article on a “clash of civilizations” (1993) was the first reminder that maybe history was not ­going to come to an end anytime soon ­after all, as Francis Fukuyama had famously argued (1989). The attacks on 9/11, eight years l­ater, drove that message home in an unfortunately much more tangible way. September 11, however, was still a m ­ atter of the outside world imposing itself on the West. Few expected the apparent rejection of, or at least dissatisfaction with, the politics of the West to become an internal phenomenon as well. Still, as we noticed above, the Eu­ro­pean Union is currently struggling with the question of how to respond to developments in its member states Hungary and Poland that appear to be heading in an illiberal direction. With the Brexit in the United Kingdom and the election of Donald Trump as president of the United States, both in 2016, and the formation of a full-­blown populist government in Italy, in the spring of 2018, it became evident that “populist” trends can be discerned in other parts of the West as well (Müller 2016). Since then, developments have not stood still, as the outcomes of the Eu­ro­pean elections held in 2019 and the 2021 storming of the U.S. Capitol demonstrate. The way out of this problematic state of affairs paradoxically lies in returning to the idea of constitutional government securing natu­ral rights, as it arose approximately two hundred fifty years ago. Such a recommendation is paradoxical indeed, as the birth of the international ­human rights system is usually understood as a significant step forward compared to the mostly national protection of fundamental rights that existed before the Second World War. On closer inspection, however, the prevailing undemo­cratic liberalism must be addressed rather than accepted, as Mounk seems inclined to do by formulating the “antidemo­cratic dilemma.” Not addressing undemo­cratic liberalism can easily lead to the transformation of such countries into illiberal democracies themselves. It is hardly necessary to point out that in that case, h ­ uman rights w ­ ill be at an even higher risk than is already the case. Distinguishing more sharply between an admittedly minimalist set of proper h ­ uman rights and a considerably broader set of positive rights again ­will, on the contrary, significantly reduce the number of topics currently withdrawn from po­liti­cal contestation. ­There are vari­ous reasons why, in par­tic­u­lar, the concept of natu­ral law might raise controversy in the twenty-­first c­ entury, both within and outside the West. The most impor­tant of the negative connotations is prob­ably “the perception of natu­ral law being too closely associated with Catholic theology” (Kelly 2008, 2).

Natu­ral Law and the ­Future of ­Human Rights • 167

Although the natu­ral law tradition is indeed rooted in Christian anthropology, it has equivalents in Judaism and Islam, however (cf. Emon, Levering, and Novak 2014), while ­there are also other ways of reaching ­these insights regarding h ­ uman nature than by faith. As it was defined above, the standards that this tradition puts forward to order po­liti­cal and social life are all accessible to h ­ uman reason. Neither is the tradition as rigid as some opponents portend it to be, given vari­ ous modern interpretations of natu­ral law that are currently being defended (see, e.g., Ford 2020; Hogan 2020; Lloyd 2020). In this sense as well, the natu­ral law and natu­ral rights tradition is realistic and nonideological rather than ideological and, therefore, unrealistic as is often claimed. Disposing of the idea altogether comes with a prize, moreover. Given the stakes involved, the question is ­whether we ­ought not to become more aware again of the role that natu­ral law has historically played in modern constitutionalism in general and concerning h ­ uman rights in par­tic­u­lar. Con­temporary constitutional practice builds on the achievements of modern constitutionalism and can continue to do so for a while. Sooner or ­later, however, it may prove to be the case that ­these results are no longer available without the continuous nourishment of their ideological roots. As Scott Pryor has pointed out, “Rights untethered to an account of what it means to be ­human and what the end or purpose of h ­ uman existence [is] leads to twin risks: failure to identify a legitimate ­human right (or rights b­ earer) and creation of putative ­human rights that are no more than aspirations for a par­tic­u­lar (and perhaps contested) good” (2011, 621; cf. Hill 2017; Mahoney 2018). It conforms with the idea of the natu­ral law and natu­ral rights tradition that understandings of h ­ uman flourishing may differ substantially across the world’s civilizational divides and even within, for example, the West, while still allowing for a minimalist consensus on what proper ­human rights are (cf. Movsesian 2016). ­There is, of course, an impor­tant debate about w ­ hether or not the notion of natu­ral rights is compatible with natu­ral law. Po­liti­cal phi­los­o­pher Leo Strauss (1899–1973), among o­ thers, has pointed out that the notion of natu­ral rights is a profoundly modern invention, starting only with Thomas Hobbes (1588–1679) and John Locke (1632–1704) (Strauss 1950). O ­ thers have argued that this notion of natu­ral rights is nevertheless compatible with the much older one of the natu­ ral law (Seagrave 2014). The con­temporary relevance of this debate derives from the fact that the viability of liberal democracy depends on it. Critics like Strauss hold that the experiment of modern constitutionalism that started with the American Founding was due to fail from the very beginning. It only took us two hundred fifty years to find out. The reason why it was doomed to fail is that the more successful its under­lying philosophy of liberalism, of which natu­ral rights are a vital component, becomes, the more difficult it is to maintain a form of constitutional government for which civic virtue is required (cf. Deneen 2018). ­There is also a body of lit­er­a­ture that, like this chapter, defends the view that natu­ral rights and natu­ral law are compatible ­after all. This lit­er­a­ture points to

168 • Hans-­Martien ten Napel

the fact that the Found­ers ­were well aware of the fact that natu­ral rights could not be exercised in an ethical vacuum and therefore regarded the promotion of the moral conditions for freedom as an essential task of the government (West 2017). The fact that this has changed in recent de­cades should give us reason to pause. The way to solve the prob­lem is, however, to bring constitutional practice more in harmony again with the theory rather than rejecting the Founding ideals themselves (Ten Napel 2020). From the latter perspective, it can hardly come as a surprise that “natu­ral law theory is becoming a topic of growing interest again, having once dominated patristic, medieval, and early modern Catholic, Protestant, and Enlightenment thought before giving way to modern ­legal positivism.” Indeed, as John Witte Jr. rightly puts it, “A number of Jewish, Protestant, Eastern Orthodox, and Muslim scholars are now also resurrecting the rich natu­ral law teachings of their traditions and developing new natu­ral law theories to address fundamental ­legal questions t­ oday in and on terms that o­ thers with dif­fer­ent faith traditions can appreciate. . . . ​Natu­ral law theory, while still controversial, is becoming a promising new arena of interreligious and interdisciplinary dialogue” (2018, 259; see also, e.g., Duke and George 2017; Crowe and Youngwon Lee 2019). ­Going back to the roots of h ­ uman rights, that is, the tradition of natu­ral law and natu­ral rights, does not necessarily exclude a reconciliation between classical freedom rights and second-­generation social and economic rights. Thus, in contrast with Rhodes, the International Theological Commission of the Roman Catholic Church reaffirmed some ten years ago that the Universal Declaration of ­Human Rights “constitutes one of the most beautiful successes of modern history” (2009, 5). It could be a concession that more ideological adherents of the natu­ral law and natu­ral rights tradition ­w ill have to make to in all modesty acknowledge the fact that this theological position reflects a new minimalist approach to h ­ uman rights compared to the founding. For this new minimalist approach to be practical, proponents of the current ­human rights regime ­ought to be so modest as to concede that their conception of ­human rights is not minimalist and thus puts at risk the “core” set of rights that the Universal Declaration contains. As noted above, the fact that the natu­ral law and natu­ral rights tradition has come u­ nder pressure in the West makes the proposition of natu­ral law serving as the foundation of global h ­ uman rights not an immediately obvious one. Still, as the commission also points out, “Disconnected from the moral sense of values, which transcend par­tic­u­lar interests, the multiplication of procedures and juridical regulations leads into a quagmire, which, when all is said and done, only serves the interests of the most power­ful” (International Theological Commission 2009, 5). Therefore, we hardly have a choice: “Beyond the differences of our religious convictions and the diversity of our cultural presuppositions, we must be capable of expressing the fundamental values of our common humanity, in

Natu­ral Law and the ­Future of ­Human Rights • 169

order to work together for understanding, mutual recognition and peaceful cooperation among all the members of the ­human f­ amily” (116).

Conclusion In conclusion, it is worthwhile to go back once more to the commission referred to at the beginning of this chapter, that is, the U.S. Department of State’s Commission on Unalienable Rights. As mandated, this commission has suggested a  return to the minimum consensus of the Universal Declaration of ­Human Rights of 1948. Its chair, professor of constitutional law at Harvard University Mary Ann Glendon, had already suggested such a “renewal” in some of her work (see, e.g., Glendon and Kaplan 2019). This consensus includes the rights to work, education, and an “adequate” standard of living (Articles 22–28 of the Universal Declaration). Even in this less radical scenario, it should be realized that a return to the roots of ­human rights may take generations to materialize with no success guaranteed. Ultimately, as is the case with other features of liberal democracy, the fate of ­human rights ­will depend not on institutional or ­legal reforms but on compatibility with the “cultural unwritten constitution” that, according to Kirk, exists in the hearts and minds of the p­ eople. Long before Kirk, Joseph de Maistre (1753–1821) already argued how “Man cannot create a constitution, and no legitimate constitution can be written”: He who believes himself able by writing alone to establish a clear and lasting doctrine is a ­great fool. If he r­ eally possessed the seeds of truth, he could never believe that a ­little black liquid and a pen could germinate them in the world, protect them from harsh weather, and make them sufficiently effective. As for whoever undertakes writing laws or civil constitutions in the belief that he can give them adequate conviction and stability b­ ecause he has written them, he disgraces himself, w ­ hether or no[t] other ­people say so. He shows an equal ignorance of the nature of inspiration and delirium, right and wrong, good and evil. This ignorance is shameful, even when approved by the ­whole body of the common p­ eople.5

Arguably, the fact that the Western constitutional practice is no longer in conformity with the unwritten cultural constitution makes such approval by the population at large increasingly tenuous. To the extent that the natu­ral law is believed to be “written in our hearts,”6 and the idea of natu­ral rights is indeed compatible with it, the same unwritten constitution might in the long run well prevail over any con­temporary outrage regarding the shrinking space for politics ­because of the international ­human rights system as it has developed, among other ­things.

170 • Hans-­Martien ten Napel

Notes 1 Federal Register 84 (104), May 30, 2019, Notices, 25109. 2 See https://­w ww​.­state​.­gov​/­report​-­of​-­the​-­commission​-­on​-­unalienable​-­rights​/­. 3 The Witherspoon Institute’s online center for Natu­ral Law, Natu­ral Rights, and American Constitutionalism, http://­w ww​.­nlnrac​.­org​/­about. 4 Vienna Declaration. See https://­w ww​.­ohchr​.­org​/­EN​/­ProfessionalInterest​/­Pages​ /­Vienna​.­aspx. 5 See www​.­historymuse​.­net​/­readings​/­deMaistreGenerativePrincipleofPoliticalConst itutions1809​.­htm. 6 As Saint Paul puts it in Romans 2:15.

References Ackerman, Bruce. 2017. “Good-­bye, Montesquieu.” In Comparative Administrative Law, 2nd ed., edited by Susan Rose-­Ackerman, Peter L. Lindseth, and Blake Emerson, 38–43. Cheltenham: Edward Elgar. Blokker, Paul. 2019. “Pop­u­lism as a Constitutional Proj­ect.” International Journal of Constitutional Law 17:536–553. Clifford, Bob. 2019. Rights as Weapons. Instruments of Conflict, Tools of Power. Prince­ ton, NJ: Prince­ton University Press. Crowe, Jonathan, and Constance Youngwon Lee, eds. 2019. Research Handbook on Natu­ral Law Theory. Cheltenham: Edward Elgar. De Búrca, Gráinne. 2018. “Is EU Supranational Governance a Challenge to Liberal Constitutionalism?” University of Chicago Law Review 85:337–367. Deneen, Patrick. 2018. Why Liberalism Failed. New Haven, CT: Yale University Press. Duke, George, and Robert P. George, eds. 2017. Natu­ral Law Jurisprudence. Cambridge: Cambridge University Press. Emon, Anver M., Matthew Levering, and David Novak. 2014. Natu­ral Law: A Jewish, Christian, and Islamic Trialogue. Oxford: Oxford University Press. Ford, Craig. 2020. “A Natu­ral Law for Queer and Racial Justice.” Canopy Forum, On the Interactions of Law and Religion, January 21. Frohnen, Bruce P., and George W. Carey. 2016. Constitutional Morality and the Rise of Quasi-­Law. Cambridge, MA: Harvard University Press. Fukuyama, Francis. 1989. “The End of History?” National Interest 16:3–18. Galston, William A. 2018. Anti-­pluralism: The Populist Threat to Liberal Democracy. New Haven, CT: Yale University Press. Glendon, Mary Ann, and Deth D. Kaplan. 2019. “Renewing H ­ uman Rights.” First ­Things, February. Hannum, Hurst. 2016. “Reinvigorating H ­ uman Rights for the Twenty-­First ­Century.” ­Human Rights Law Review 16:409–451. Hazony, Yoram. 2018. The Virtue of Nationalism. New York: Basic Books. Hill, John Lawrence. 2017. “The Only Solid Foundation for ­Human Rights Is Natu­ral Law.” MercatorNet, August 8. Hirschl, Ran. 2004. ­Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hogan, Linda. 2020. “The Many Voices of H ­ uman Rights.” Canopy Forum, On the Interactions of Law and Religion, January 8. Hopgood, Stephen. 2013. The Endtimes of ­Human Rights. Ithaca, NY: Cornell University Press.

Natu­ral Law and the ­Future of ­Human Rights • 171

Huntington, Samuel P. 1993. “The Clash of Civilizations?” Foreign Affairs 72:22–49. International Theological Commission. 2009. “In Search of a Universal Ethic: A New Look at the Natu­ral Law.” http://­w ww​.­vatican​.­va​/­roman​_­curia​/­congre​ gations​/­c faith​/­c ti​_­documents​/­rc​_­con​_­c faith​_­doc​_­2009 0520​_­legge​-­naturale​ _­en​.­html. Keane, John. 2009. The Life and Death of Democracy. New York: Simon & Schuster. Kelly, Anthony J. 2008. “The Global Significance of Natu­ral Law: Opportunities, Quandaries and Directions.” Australian eJournal of Theology, July 12. Kinneging, Andreas. 2018. “Bijbel van het moderne constitutionalisme.” In De Federalist Papers. Bakermat van het moderne constitutionalisme, edited by Paul de Hert, Andreas Kinneging, and Gerard Versluis, 305–325. Eindhoven: Damon. Koskenniemi, Martti. 2019. International Law and the Far Right: Reflections on Law and Cynicism. The Hague: Asser Press. Lloyd, Dana. 2020. “Rights of Indigenous P ­ eoples and the Nonhuman Environment.” Canopy Forum, On the Interactions of Law and Religion, January 13. Mahoney, Daniel J. 2018. “Recovering the Moral Contents of Life: Pierre Manent on Natu­ral Law and H ­ uman Rights.” City Journal, July 27. McIlwain, Charles Howard. 1940. Constitutionalism: Ancient and Modern. Ithaca, NY: Cornell University Press. Metzger, Gillian E. 2017. “Foreword: 1930s Redux: The Administrative State ­Under Siege.” Harvard Law Review 131:1–95. Miller, Paul D. 2013. “What the Found­ers Meant by Self-­Governance. It’s about More Than Voting, Repre­sen­ta­tion or Majority Rule.” Federalist, December 10. Möller, Kai. 2012. The Global Model of Constitutional Rights. Oxford: Oxford University Press. —­—­—. 2019. “Justifying the Culture of Justification.” International Journal of Constitutional Law 17:1078–1097. Mounk, Yascha. 2018a. The P ­ eople vs. Democracy: Why Our Freedom Is in Danger and How to Save It. Cambridge, MA: Harvard University Press. —­—­—. 2018b. “The Undemo­cratic Dilemma.” Journal of Democracy 29:98–112. Movsesian, Mark. 2016. “Of H ­ uman Dignities.” Notre Dame Law Review 91:1517–1551. Moyn, Samuel. 2010. The Last Utopia: ­Human Rights in History. Cambridge, MA: Harvard University Press. Müller, Jan-­Werner. 2016. What Is Pop­u­lism? Philadelphia: University of Pennsylvania Press. Myers, Peter C. 2017. “From Natu­ral Rights to H ­ uman Rights—­and Beyond.” Heritage Foundation, December 20. —­—­—. 2019. “When Exactly Did the Idea of Rights Go Off the Rails.” Law and Liberty, July 5. Pryor, C. Scott. 2011. “Looking for Bedrock: Accounting for Bedrock: Accounting for ­Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition.” Campbell Law Review 33:609–640. Rhodes, Aaron. 2018. The Debasement of ­Human Rights: How Politics Sabotage the Ideal of Freedom. New York: Encounter. Schlesinger, Arthur M., Jr. 1973. The Imperial Presidency. Boston: Houghton Mifflin. Seagrave, S. Adam. 2014. The Foundations of Natu­ral Morality: On the Compatibility of Natu­ral Rights and the Natu­ral Law. Chicago: University of Chicago Press. Strauss, Leo. 1950. Natu­ral Right and History. Chicago: University of Chicago Press. Sumption, Jonathan. 2019. ­Trials of the State: Law and the Decline of Politics. London: Profile Books.

172 • Hans-­Martien ten Napel

Sunstein, Cass R., and Adrian Vermeule. 2020. Law and Leviathan: Redeeming the Administrative State. Cambridge, MA: Harvard University Press. Tasioulas, John. 2019a. “Are ­Human Rights Taking Over the Space Once Occupied by Politics?” New Statesman, August 26. —­—­—. 2019b. “Saving ­Human Rights from ­Human Rights Law.” Vanderbilt Journal of Transnational Law 52:1167–1207. Ten Napel, Hans-­Martien. 2019. “The Natu­ral Law and Natu­ral Rights Tradition: A Foundation for Religious Freedom.” LSE Religion and Global Society, July 15. —­—­—. 2020. “A Natu­ral Law Basis for ­Human Rights?” Canopy Forum, On the Interactions of Law and Religion, January 6. Ten Napel, Hans-­Martien, and Wim Voermans. 2016. The Powers That Be: Rethinking the Separation of Powers. A Leiden Response to Möllers. Leiden: Leiden University Press. Toosi, Nahal. 2019. “State Department to Launch New H ­ uman Rights Panel Stressing ‘Natu­ral Law.’  ” Politico, May 30. Wallach, Philip A. 2016. “The Administrative State’s Legitimacy Crisis.” Brookings Institution, April. Weinrib, Jacob. 2016. Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge: Cambridge University Press. West, Thomas G. 2017. The Po­liti­cal Theory of the American Founding: Natu­ral Rights, Public Policy, and the Moral Conditions of Freedom. Cambridge: Cambridge University Press. Whelan, Daniel J. 2010. Indivisible H ­ uman Rights: A History. Philadelphia: University of Pennsylvania Press. Witte, John, Jr. 2018. “Foreword.” In Research Handbook on Law and Religion, edited by Rex Ahdar. Cheltenham: Edward Elgar.

11

Yesterday, ­Today, and Tomorrow Thoughts on Global H ­ uman Rights in the Twenty-­First ­Century EMILIE M. HAFNER-­B URTON

­ uman rights are basic rights and freedoms to which all ­people are entitled H regardless of nationality, sex, ethnic origin, race, religion, language, or other status. They are moral assurances and prerequisites to ­human well-­being. As this volume shows, many institutions, laws, and procedures in princi­ple provide for them—­from rights to life, liberty, and personal security, to education, peaceful assembly, opinion, expression, and much more. Th ­ ose assurances are supposed to be for every­one: the princi­ple of universality is the cornerstone of international ­human rights law. ­Human rights are also called indivisible: we ­aren’t supposed to rank order them. The rights enumerated in the Universal Declaration of ­Human Rights are set forth as fundamental values essential to all humanity. The real­ity, of course, is that t­ hese aspirations d­ on’t automatically translate into ­human rights protection for every­one, or even for most. Governments, their envoys, and their challengers deprive so many ­people of their rights. Many abusers get away with impunity. Some abuses are even baked into institutions, laws, and cultures. Th ­ ere are no easy ways to change ­these realities. Massive resources 173

174 • Emilie M. Hafner-­Burton

are spent on an international h ­ uman rights l­egal system that has made g­ reat strides in articulating norms it alone ­can’t or ­won’t implement (Hafner-­Burton 2013). ­These hard facts pose a challenge for protecting ­human rights in a world already dense with international ­legal norms, obligations, procedures, and advocates. Why do ­human rights violations endure despite the vast expansion of global efforts at h ­ uman rights promotion? And what does the ­future hold for the movement? From my vantage point, ­there is much to laud about this system, which articulates a power­ful vision for the promotion of h ­ uman well-­being (Goodman and Jinks 2013). It already has made significant achievements by shifting the goalposts for what is acceptable and motivating both local and foreign policy on h ­ uman rights (Simmons 2009). I would not want to live in a world without it—or some version of it. But the system ­faces immutable challenges. Its force lies in setting standards and goals, its weakness in facing state sovereignty (Goldsmith and Posner 2006). In many ways, the system is, or more accurately should be, confronting a whirlwind of crisis and change (Rieff 2018). Traditional strategies have extended far beyond expectation. We have system ­after system of law, an explosion of procedural innovation, and deeply formed advocacy communities. And yet we continue to hit massive roadblocks that w ­ ill not be solved by creating more of what we have. More, in fact, could be a waste of time and resources and possibly even dangerous (Mchangama and Verdirame 2013). From many vantage points, t­ oday’s system ­faces a crisis of legitimacy and relevance ­because it is increasingly packed with actors that have no intention, and sometimes no ability, to honor its aspirations. Many of t­ hose actors hold or are rising in geopo­liti­cal or financial power and influence t­ oday. And the postwar norms it set out and seeks to promote are perhaps too often taken for granted as “universal” truths to be endorsed rather than as evolving princi­ples to debate, which must bend and grow to fit local realities, shifting technologies and cultures. Rather than double down all bets on traditional approaches, now is the time to reconsider both the purpose of the movement and the challenges we face in a twenty-­first-­century world characterized by a rise in pop­u­lism, illiberal democracy, and authoritarianism. Despite the real victories and the tremendous effort and dedication by the architects and advocates of the system, which we should celebrate, all is not well.

State Sovereignty The first, ever-­present, and insurmountable challenge is state sovereignty (Donnelly 2014). Efforts to promote ­human rights ­will never trump efforts to protect state sovereignty. It may sound sacrilegious, but power and interests are always at the heart of any efforts to promote, or rebuke, ­human rights. ­Unless the recognition and uptake of h ­ uman rights is made to be in the interest of the

Yesterday, ­Today, and Tomorrow • 175

power­ful—of t­ hose in charge with the means to repress, w ­ hether that be governments, markets, or households—­they w ­ ill get cast aside at w ­ ill or simply outright denied. For a h ­ uman rights promotion system to work, it must get systems of ­people, cultures, and institutions to buy in: to think that protecting h ­ uman rights is in their interest. ­There are many ways to define such an interest: reputationally, morally, eco­nom­ically, po­liti­cally. But telling a person—­let alone a culture, government or country—­that the recognition of and protection for ­human rights should be in their interest does not make it so and never ­will. The practical question then becomes how to make rights into interests? In the most basic terms, t­ here are two known ways this can work. One is coercion, by taking actions that change the costs and benefits of specific actions, policies, or positions, which does not necessarily require changing beliefs about the goal. I do not engage in some reprehensible action, not ­because I am morally or personally against the be­hav­ior, but ­because I fear the consequences of ­doing so and believe that they outweigh the benefits of the action. Th ­ ere are many ways this could, in princi­ple, work: a credible threat of arrest, trial, or harm; a bad reputation; a loss of power or control; a loss of financial resources; or conversely, an infusion of positive gains and accolades for abiding (Barnhizer 2018; Hafner-­ Burton 2005, 2009; Sikkink 2011). This form of incentivizing h ­ uman rights be­hav­ior has long been a core strategy of both activist and state tactics. Unfortunately, history shows that this coercive strategy by itself is extremely difficult to achieve and sustain, especially at a global level. To work, it has to be credible, meaning t­ here has to be follow through. And for it to stick, it has to be sustained over enough time ­until t­ here is real buy in, or actors and systems who benefit from h ­ uman rights violations w ­ ill revert. In a country with a well-­ functioning criminal law system, a police officer can arrest an offender, courts can prosecute, and the criminal justice system can see to it that the court’s ­orders are carried out. And even in ­those countries, ­things often go awry—­just consider the spate of unjustified police vio­lence against minorities in the United States, and so many other countries, that ­today are motivating mass protests against systemic racism. That vision of a functioning criminal law system is not the world of many countries and it is certainly not the world of international politics. It never ­will be. The world of international politics is all about sovereignty. And states and their machineries of power w ­ ill relinquish that only when they have no other choice. It has to be in their interest or they have to be forced. Marry this real­ity to our international ­human rights system and its articulation of not only norms, but now many committees, reporting and complaints procedures, oversight features, recommendations, advocacy and shaming efforts. Can it adequately meet this challenge? Can it coerce power­ful actors who have incentives to repress into protecting ­human rights instead? The answer is often no (Hathaway 2001–2002; Neumayer 2005; Hafner-­Burton and Tsutsui 2005; Cole 2015). Sadly, that is even true of our international criminal courts. That’s not what our system does best and in most places it never ­will be its strength. It

176 • Emilie M. Hafner-­Burton

is inherent to the issue of sovereignty and power. Enforcement is not and ­will never be its linchpin, not without external motivation and intervention. And that is where politics reigns supreme. Consider some of the prominent treaty bodies exposed in this book, such as the ­Human Rights Committee. They are empowered to oversee a reporting pro­ cess and complaints procedures. They serve tremendous oversight and publicity purposes and have made impor­tant achievements in t­ hose regards. But they have no way by themselves to ensure that governments implement their observations and conclusions u­ nless it is in the interest of the accused. Only outside actors can make that happen, ­whether that be other states or civil society. And only with a lot of effort and power in the domestic po­liti­cal sphere. Reputational concerns—­which is where most of the “enforcement” power of the system lies—­matter only when they are attached to other ­things of value, like wanting to be part of a community, maintaining power, or gaining wealth (Guzman 2007). If you ­don’t want, or ­won’t lose, a seat at the ­table—if your power and wealth are secure—­reputation is not a likely mover. That is why it is not at all clear that long-­standing efforts to ramp up monitoring and enforcement within the system has done all that much more to get real uptake, over and above establishing norms. ­Those in power usually get to decide ­whether and how to react. When they can get away with it, they simply ignore t­hese efforts, or take symbolic steps to respond. They lie, they bend the truth, they engage in the game of rhe­toric and cheap talk. That has always been the case and is unlikely to change, certainly where civil society is weak and power reigns supreme: in the very places where the prob­lems are often the worst (Hafner-­ Burton and Tsutsui 2007). That’s a fundamental—­and ever-­present—­challenge facing the movement. All of our proclamations, treaties, courts, and monitoring and enforcement procedures are supposed to provide the foundation to spread the system’s aspirations, but much of their uptake depends on the w ­ ill of states and their bureaucracies, agents, and leaders, who are often the perpetrators. And this returns us to coercion. It is certainly pos­si­ble and has happened, that power­ful actors can develop interests in ­human rights through some kind of coercive force or constraint. But it is far too rare and requires special circumstances. This is not a new prob­lem: sovereignty has always been a central strug­gle. But the shifting balance of geopo­liti­cal power, and the concurrent rise of both pop­ u­lism and illiberalism in t­ oday’s global landscape, now makes this an especially difficult challenge for the movement. The historical forces of coercion in the name of h ­ uman rights are in decline. And much of the world is now doubling down on the discourse of sovereignty and using ­human rights institutions to do it. Right now, as this book goes to print, all of this is taking place in the context of one of the world’s worst pandemics, COVID-19, which only intensifies both the turn inward by many states that could be h ­ uman rights champions and the rise of autocrats who are using the crisis to justify repressive mea­sures.

Yesterday, ­Today, and Tomorrow • 177

Pop­u­lism and the Decline of the West The modern international h ­ uman rights system was born with the adoption of the Universal Declaration by the UN General Assembly in 1948. Remarkably, its origins reflect the views of many nations, East and West, North and South. While the fingerprints of power­ful countries across the Cold War’s divide imprint the system, it has been mainly Western liberal democracies that have been most ardent, if not always consistent, about upholding and globally spreading the rhe­toric and ideology of rights and the po­liti­cal infrastructure to protect them. It is primarily t­ hese states and their agents that have been the historical norm entrepreneurs and enforcers, sometimes for better sometimes for worse (Forsythe 1990; Mertus 2004; Kreutz 2015). They have been the driving engines ­behind any coercion driven by the rhe­toric of rights promotion. And t­ hey’ve used a lot of diplomatic, economic and po­liti­cal tools to do so. But ­things are looking dif­fer­ent ­today, as waves of pop­u­lism coupled with a new flavor of nationalistic rhe­toric cascade through many of the states once leaders in the movement (Roth 2018). ­Today, I live in the United States, a country that is far from a neutral or dependable ­human rights promoter, but one that has long been extremely active globally on the issue. Current times are troubling. Previous administrations have used the language of rights at times to justify what are in my view other­wise “unjustifiable” foreign policy interventions, propping up dictators and invading countries. But the United States has also long been a leading promoter of h ­ uman rights ideals—­especially civil and po­liti­cal rights— in its foreign diplomacy. ­Today, we are not even having the conversation about our role in ­human rights promotion around the world. We are a country divided on the very nature of ­human rights for our own citizens and t­ hose seeking to become one or visit one. Travel bans target Muslims. Violent and derogatory efforts deny refugees seeking basic security. Forcibly separating c­ hildren from their parents, interning them in horrid conditions. Racist and sexist statements emanating from the highest levels of our government on a frequent basis, and echoing through our society, spread on social media. Police brutality against—­and outright murder of—­ people of color. ­Water boarding, back on the t­ able. Withdrawal from the UN ­Human Rights Council. Refusal to join the ICC or CRC. Pulling out of the arms trade treaty. ­There is a domestic backlash against h ­ uman rights, and a significant enough portion of the American public appears willing to support ­these policies and attitudes. Indeed, ­there is even a backlash against the core princi­ples of demo­cratic repre­sen­ta­tion and peaceful transitions of power, sometimes characterized by vio­lence. The forty-­fi fth president of the United States, Donald Trump, was impeached for a historically unpre­ce­dented second time, for “incitement of insurrection” of the U.S. Capitol by an angry mob of his supporters refusing to accept the transition to a new administration (House Resolution, January 10,

178 • Emilie M. Hafner-­Burton

2021).1 Sadly, many elected officials in the U.S. legislature voted to support his calls to overturn the 2020 election results that removed the president from elected office (Yourish, Buchanan, and Lu 2021). Any notion that the United States would actively advocate for h ­ uman rights abroad right now have all but faded. It is not yet clear w ­ hether this recoil is a momentary or recoverable glitch in history, or something much more profound in how Amer­i­ca sees its role in the world and in the ­human rights system. But what is clear to me is that Amer­i­ca’s turn inward, away from its admittedly complicated—at times outright hypocritical—­history of h ­ uman rights promotion ­will have adverse effects for many ­people (Green 2017). And understandably, the context of the COVID-19 crisis, and the destruction it brings, have turned the United States even further inward-­looking. U.S. backlash and its inward turn are not the only changes affecting the potential of the h ­ uman rights regime. The populist wave is a much broader and diverse phenomenon, as voters suffering economic and social turmoil seek to oust establishment parties and leaders in many other once-­human rights promoting countries. Countries in Eu­rope and beyond are struggling with it, as ­people are voting right-­wing, anti-­immigration, antiestablishment parties into power. And ­these parties are aiming to wage war on ­human rights, especially ­those relating to immigrants, mi­grants and underrepresented populations. All this puts into worrying question w ­ hether the countries that w ­ ere once the backbone for the “enforcement” of global ­human rights norms are taking a firm back seat, and if so, how long they intend to stay t­ here. The pandemic w ­ ill cause a delay on this front for an unknown period of time. But pandemic or not, all ­these ingredients for backlash have long been in play. ­There is pushback against this trend by traditional parties and po­liti­cal institutions. And public sentiment is by no means fully anti–­human rights. But the shifting nature of the discourse within many of the once-­entrepreneurs of the system, willing to tender ­human rights aspirations through their foreign policies—­such as aid, trade, and diplomacy—­poses real challenges for a system that must rely on the willingness and capacity of motivated states to engage in coercion for, rather than against, ­human rights. ­These developments raise pressing questions about how to spread the promotion of rights t­ oday. The system cannot and ­will not enforce itself, but must rely on other actors. That has always been the case. But now, many of the key architects and proponents of the system are bowing out, turning inward, questioning the very foundation of h ­ uman rights within their own socie­ties. That is a major, and new, challenge of this era, now deeply complicated by the pandemic and its many effects on the fabrics of society. In the words of UN secretary-­general Antonio Guterres, “The COVID-19 pandemic is a public health emergency—­but it is far more. It is an economic crisis. A social crisis. And a ­human crisis that is fast becoming a ­human rights crisis” (United Nations 2020).

Yesterday, ­Today, and Tomorrow • 179

The Rise of Autocrats The anti-­human-­rights talk and actions, both locally and globally, that are accompanying ­today’s flavor of pop­u­lism sweeping the West is troublesome. But it is its coexistence with another trend—­the rise of autocracy—­that is most deeply worrying. The geopo­liti­cal landscape is again shifting, as repressive, illiberal powers are vying quite successfully for global and regional influence (Obydenkova and Libman 2019). And they are ­doing so precisely at the time that so many Western powers are in, or contemplating, retreat from the global scene. ­These autocratic governments are both willing and able to fill the void the West is leaving ­behind as it turns inward, both within the h ­ uman rights system and beyond it in ways we have not quite seen before (Haggard and Kaufman 2020). The once-­promising waves of democ­ratization that swept the world have all but ceased. A large number of countries have institutionalized their hold on power through violent and repressive means—­some have even done so through capturing formal electoral institutions (Hafner-­Burton, Hyde, and Jablonski 2014, 2016). The specter of democracy and the protections for h ­ uman rights at its core have waned in power within the global system as a result. Rising now are countries that outrightly deny basic h ­ uman rights and freedoms to their ­people. Some are not afraid to use the ­human rights system as a pulpit to do so. China is both an in­ter­est­ing and alarming example. It has long undercut many of the most basic civil and po­liti­cal rights of its populations, while at the same time providing a substantial boost in economic development for much of the nation. The history is written. But by many accounts, u­ nder the current administration of President Xi Jinping and his Central Communist Party, China has become both more power­ful globally and more authoritarian (­Human Rights Watch 2021). High tech surveillance used to track and crush po­liti­cal opposition. Widespread state control over and censorship of information through the internet, media and education systems. Explicit policies of po­liti­cal imprisonment not subject to criminal procedure law. And a massive campaign of vio­lence, detention, and repression against millions of ethnic minorities. The list is long. That the Chinese government actively condones and orchestrates the repression of its ­peoples is not an internal ­matter. It’s increasingly an international prob­ lem. According to H ­ uman Rights Watch, in 2020 China’s policies and actions posed “a global threat to h ­ uman rights” and to the international system designed to enforce them (Woodyatt 2020). Efforts to suppress information and criticism of the government extend not just to the borders of China but to the world around it. Hong Kong—­formally promised a high degree of autonomy—is protesting in the streets while the Central Communist Party actively works to suppress their rights to ­free speech and po­liti­cal self-­determination. New “security” laws aim to crush prodemocracy protests. And in Tibet, where the list of abuses is long and wide, even community mediation by religious figures is against Chinese law.

180 • Emilie M. Hafner-­Burton

As China has become more repressive, it has also become more power­ful and more globally oriented. The country is hardly inward looking. Alongside the creation of the Asian Infrastructure Investment Bank (AIIB) and the ­Belt and Road Initiative, which have given China a w ­ hole new set of tools to leverage its role on the global scene, China also plays a very prominent role on the UN ­Human Rights Council. ­There, its representatives actively vote against investigations into massacres such as ethnic cleansing in Myanmar and against protections for LGBTQ rights. As of 2020, China sits on a council panel where it w ­ ill play a central role in choosing investigators on m ­ atters relating to t­ hings like f­ ree speech and arbitrary detention—­issues on which the state has a terrible track rec­ord. From China’s perspective, the United States’ recent withdrawal of the council, and turn away from the system, is a gift that only further facilitates the use of the council for its own po­liti­cal purposes. The result has been a shift in discourse, away from global norms of dignity ­toward norms of state sovereignty and a concerted effort to shut out civil society. China is certainly not alone in playing this role. ­There are a growing number of power­ful repressive countries operating within the global marketplace of ideas and influence. On the ­Human Rights Council ­today sits Pakistan, the Ukraine, and Venezuela, all power­ful regional players with extremely repressive regimes. Add in the current COVID-19 pandemic and the situation is even more dire. Many governments, liberal included, are using the spread and effects of the virus as a means to further consolidate their own po­liti­cal power and to weaken local institutions, even ­those intended to sustain demo­cratic princi­ples (Keilitz 2020). States are passing new laws to track citizens, instituting emergency powers that strengthen the government’s hands, and clamping down on dissent. O ­ rders for media censorship and curfews, security personnel on the streets, and suspended elections: t­ hese are all current realities that strengthen regimes and may be hard to roll back (Gebrekidan 2020). What is happening t­ oday reflects both the per­sis­tence of old hard-­fought challenges such as state sovereignty, coupled with the new real­ity that the influence of the West as promoter or enforcer of h ­ uman rights is in decline—at least for now—­while illiberal and authoritarian po­liti­cal influence and reach is on the rise. The pandemic is likely to fuel the flames of both. And both are harming the legitimacy, and by extension, the effectiveness of the ­human rights movement’s institutions.

Identity and Beliefs Sovereignty and the current shifting landscape of global politics are not the only challenges the ­human rights system ­faces. ­These challenges are amplified by another, perhaps equally sobering, fact. If coercing the spread of ­human rights

Yesterday, ­Today, and Tomorrow • 181

norms is both inherently ­limited by state sovereignty and capacity and now doubly constrained by the current po­liti­cal climate, the other path to turning rights into interests—­persuasion—­appears l­ imited in impor­tant ways as well. Buy in to this system requires belief in the legitimacy and value of its norms and aspirations, and in the pro­cess of their transmission—­how they are spread. On both accounts, a core part of our movement has taken for granted the a­ ctual appeal of supposedly universal aspirations. One reason that the movement’s norms ­don’t get fully incorporated is a lack of enforcement in the face of sovereign refusal. Another is the lack of capacity to actually implement. But ­there is another reason: they, and their supporting institutions, can lack legitimacy on the ground. They d­ on’t always jibe with p­ eople’s sense of identify and belief structures. Foreign governments and other organ­izations that want to transmit ­these norms to other places can be seen as alien or disingenuous. Th ­ ere is at times a flavor of cultural imperialism attached. The aspiration might feel out of place, even offensive, to parts of the local community. And this can produce backlash and grass roots re­sis­tance. Another way of articulating this is the idea that not all “victims” see themselves as such. This has become crystal clear to me in my teaching, where my highly educated professional students come from all over the world and do not always connect to the language of ­human rights. One student sees another as victim, but the “victim” d­ oesn’t always see it that way. It makes for in­ter­est­ing discussion and has, over the years, had an indelible impact on the way I think about ­human rights. For the system to spread its values and princi­ples, ­people need to believe in them, to see them as part of their own rightful identity. And it’s not just p­ eople, but w ­ hole systems of p­ eople, markets, h ­ ouse­holds, and institutions that must find the value. This is a contentious issue. What the system and the movement calls universal norms are not always universally perceived as norms to aspire to. In some parts of the world, ­human rights is a dirty word and the movement is seen (­whether correctly or not) as elitist, serving the interests of the privileged—­whether that be states, NGOs, or elites (Ron, Crow, and Golden 2013). No one wants to be tortured, killed, or forcibly dis­appeared. But when you get into the domain of regulating many other rights, including social, cultural, or religious traditions, for example, it quickly becomes clear that t­ here is often significant disagreement between top-­down norm promoters and their target populations. And in ­today’s world where a growing number of illiberal governments are playing a central role in articulating the goals, that mismatch has become starker than ever. The system f­ aces many additional challenges, from bureaucratic to legitimacy to bud­getary prob­lems. It always has and it always ­will. The question now is, given what the world looks like t­ oday, and the trajectory we are on, what if anything can be done to bolster the revolutionary idea that h ­ uman rights are—or should be—­for every­one?

182 • Emilie M. Hafner-­Burton

Moving Forward For understandable, and historical, reasons, much of ­today’s efforts at crafting solutions focus on growing the existing system in all directions. Creating more treaties, procedures, and institutions. Expanding the number of countries and actors that participate. That strategy may increase the number of aspirations we hold, but it w ­ ill never overcome the obstacles posed by sovereignty claims and, if done too strongly from the top down ­will not become any more relevant to ­those communities and p­ eople for whom rights talk is already foreign or off putting. By some accounts, expanding the system even has some potential to be harmful (Mchangama and Verdirame 2013). Perhaps now is the time not to expand but to reevaluate. I have no full-­blown or concrete solutions; only a few ideas that are surely partial, controversial, and problematic in their own right. I’ll conclude briefly on five in the broadest of terms.

Impact Evaluation The first is to determinedly embrace the impact evaluation revolution, and that means embracing criticism—­and where pos­si­ble data science and analy­sis—in a big and public way. The ­human rights movement, much like the development movement historically, was for a long time not much subject to rigorous evaluation of its impact, or open to much in the way of criticism. Afterall, it was produced in the wake of mass genocide and atrocity, and with the very solid aspiration to never repeat the past. It is difficult to criticize well-­intentioned efforts. And so for a long time, emphasis was placed on the value of the system and its parts, rather than on its efficacy or impact. Efforts to rebut or renounce criticism rather than embrace it has been a prob­lem stifling innovation and ability to adapt. Not long ago, that reticence to criticize began to change, and a vocal backlash movement emerged to question the entire industry of ­human rights promotion (Posner 2014; Hopgood 2015). Both sides of this debate, which often cast their claims in black-­and-­white ideologically driven terms, have dues on examples of successes and failures. While t­ hese debates are philosophically in­ter­est­ ing in their own right, they have often skipped the step of systematic and in­de­pen­dent impact evaluation, instead staking g­ rand claims about the system’s functioning based on preferred examples. In part, that’s ­because impact evaluation is very hard to do, especially in a domain such as this one characterized by incentives to mispresent and conceal. But times have changed and are changing. ­Today, t­ here are growing cadres of well-­trained specialists working across many fields with myriad methods to put more reliable and systematic (where pos­si­ble) facts to the question: how well is the system working? To identify when and where the system fails, and why its aspirations and procedures have not panned out. This move ­toward impact

Yesterday, ­Today, and Tomorrow • 183

evaluation is nascent in the field of ­human rights, still far outnumbered by the anecdotal accounts of the movement’s successes or, to a lesser extent, failures. And t­ here remains too often incredulity at the insinuation that the movement is in trou­ble. This need not and should not be the case. It is in the interests of all parts of the system—­the NGOs and civil society, governments in the business of promotion, and international institutions—to identify and analyze bumps and failures through genuine impact evaluation methods, in an effort to improve. That’s how we build better policy. But that is still very far from the accepted norm of this business. We need louder and also more nuanced and sophisticated evaluation for the purpose of directing the system’s efforts and resources to t­ hose areas where they are most likely to have an impact. We need to continue to advance and embrace methodologically sound criticism (Hafner-­Burton 2013).

Power Second, we have to find creative ways to embrace that fact that power and sovereignty are central to the pro­cess. Contentious politics has always been a central tenant of the movement. The difficult real­ity though is that contentious politics often fail and, worse, can be off-­putting. Charting a path that moves us forward, beyond our current stalemate, necessarily requires relying heavi­ly on the actors that can have the largest impact on the prob­lem. ­Those are often state actors and the voices that make up their power base. And getting ­those actors on board w ­ ill happen only when h ­ uman rights are seen to be in their interest, not as an impediment. Other­wise, ­human rights are a nuisance. That may sound counterintuitive, to brainstorm new ways to marry power to rights promotion, but short of ser­vice provision in crises like the one we are now in, it may be one of the few v­ iable ways to empower the disenfranchised. ­Human rights must become interests or w ­ ill never flourish. That can mean—if a threat ­can’t or ­shouldn’t be made—­targeting efforts in less contentious ways when pos­si­ble. And that, in turn, can mean setting priorities around what realistically can be done. That does mean making hard choices. A central challenge with projections of power through state efforts to promote rights globally is the risk of perception within the target country or population that foreigners are imposing “their” interests on the rest of the world. I hear this so often from my international students. Such trou­bles arise not only when threats of military intervention or economic sanctions are involved but also with seemingly less threatening activities, such as the funding of local ­human rights advocates and programs. The use of state—­and even NGO—­power to promote h ­ uman rights can be seen as illegitimate or misguided, based on alien motivations or understandings that are out of sync with the needs and perceptions on the ground. That explains why efforts to promote ­human rights can flop—­even at times catalyzing antihuman rights sentiment.

184 • Emilie M. Hafner-­Burton

The remedy is not for states or resource-­rich organ­izations to avoid using their power in the name of h ­ uman rights, for that would be devastating. The remedy is often better localization.

Localization ­Human rights could almost certainly be better “localized,” by which I mean vetted, translated, and supported by local actors and advocates. Perhaps we have already achieved what we can from the top down by way of structure? Maybe we have already succeeded in gaining as much ground as we can on a global scale? Perhaps it is time for the movement to become more decentralized, more accessible to a broader array of actors on the ground. Better at listening. Less prone to preaching universal morals. Better at forming and leveraging relationships with other actors for whom rights talk could make sense. Persuasion comes not from being told what to believe, but by actually coming to believe that something is impor­tant for you, your f­ amily, your society. That is as true ­whether the request comes from the United Nations, a foreign government, an NGO or a religious leader. The system’s h ­ uman rights promotion efforts could benefit from more translation in context, to be incorporated within par­ tic­u­lar communities, and develop congruence with local beliefs and culture. Not surprisingly, that takes a lot of time and resources. But without it, projections of foreign power—­especially when they are framed in contentious terms—­will likely maintain the flavor of forced imperialism. And that can be contrary to winning the hearts and minds of the p­ eople at stake. Triage It is pos­si­ble to think more strategically about where to focus the l­ imited resources of the system as a w ­ hole. It is pos­si­ble, and even desirable, to set clearer priorities. No one wants to see their loved ones hurt. But imagine the consequences if medical professionals in emergency situations made decisions based on what bystanders or f­ amily members wanted them to do rather than what their expertise led them to believe was the most effective course of action. The h ­ uman rights system can easily find itself in a similar situation. States and civil society face pressure groups or shareholders that want action in par­tic­u­lar situations—­often without regard for, or knowledge of, w ­ hether the efforts are likely to be effective or appropriate. Sometimes, the movement gets most involved in settings that attract public attention and outrage b­ ecause abuses are terrible and highly vis­i­ ble, and that makes a lot of sense from the perspective of garnering public support. And maybe even morally. But t­ hose cases are often exactly the settings where t­ here is frequently the least amount of leverage. By contrast, situations where incentives can more readily be manipulated at lower cost generally command less public attention. Yet they might provide settings where the resources can ­really ­matter.

Yesterday, ­Today, and Tomorrow • 185

­These are difficult conversations. How should the system decide how to allocate its resources when not every­one or ­every case can receive the attention they need or deserve? Where to focus? On the worst cases? Where success or impact ­will be greatest? And what’s the metric to decide? Hope and bold aspirations or hard-­nosed assessments of trade-­offs? And can we or should we enhance efforts to coordinate any of ­those choices or just operate in ad hoc fashion? Is it ­either pos­si­ble or desirable to think about a more coherent strategy based more squarely on where efforts are likely to get uptake? I think it could be, for at least some parts of the movement, but only when interests are put first and where efforts at leverage are tied to assessments. And that would require more sophisticated mechanisms to assess which policies and actions have the most effectiveness in which situations. I believe we can move, or at least nudge, in this direction.

In­equality ­There is a ­great irony that the Western turn to pop­u­lism, taking place in many of the countries that have been at the forefront of the movement to foster civil and po­liti­cal rights in par­tic­u­lar, is being driven in party by a lack of attention in ­those countries to basic economic rights, which in turn has set in motion calls to roll back civil and po­liti­cal liberties for certain segments of their populations. Some part of what is fueling t­ oday’s wave of pop­u­lism is anxiety over the pocket­ book, sparked by the financial crisis and fueled by fiscal austerity, immigration, in­equality, and the economic decline of the working class. P ­ eople need jobs. They need to feed their families. And they have lost confidence in their leaders and institutions. Certainly ­there are cultural ele­ments to populism—­long-­standing attitudes of racism and discrimination—­but a central driver of the prob­lem is economic. And the pandemic already is fueling, and for a long time ­will fuel, this prob­lem. Focusing greater efforts on the promotion of economic rights, not simply within the developing world, but within the “developed” states that have played—­ and can once again play—­a power­ful role in the articulation and promotion of rights globally is prob­ably essential at this point. In many parts of the world, and for many p­ eople, poverty and in­equality are at the very core of h ­ uman suffering, long before concerns for many of the other norms articulated by our movement. It is of course the case that civil and po­liti­ cal rights are vitally impor­tant, but the Western-­led ­human rights part of the movement has for too long been overly focused on ­these rights, almost exclusively. Still ­today, many of my students coming from all over the world explain that where they come from, eating is the first priority. It starts with economic development and access to basic resources. We need to focus on that fact. Some autocrats are already d­ oing so, and gaining popularity by t­ hose who benefit, despite living the real­ity of their own po­liti­cal restrictions.

186 • Emilie M. Hafner-­Burton

Conclusion None of ­these ideas are original. And in fact many already find good homes within certain, and often dif­fer­ent, corners of the movement. Major Western NGOs are starting to turn more focus on economic rights. And sophisticated impact assessment is, slowly, on the rise in some sectors. What is essential, however, is to think about t­ hese ideas as a package. The movement ­faces both long-­ standing and newly developing challenges. How to reengage the West is just as critical a question as how to continue to bolster ­human rights in an age of rising autocracy that is adopting the rhe­toric and institutions for its own purposes. Indeed, they are now inseparable questions. International l­ egal norms set high standards, and the machinery of the international h ­ uman rights ­legal system cannot stop all abuses. Nothing can do that. Rather than striving to trump state sovereignty against the ­will of the power­ ful, the key now is to strategize new ways to turn h ­ uman rights into interests to support the international l­egal system’s norms. Making the w ­ hole system—­ international law as well as the actions of the actors that support ­legal norms—­ work better requires a shift in strategy that, where pos­si­ble, deploys resources where they ­will be more effective. And it may no longer necessitate growing the ­legal system, but rather working together to harness its most basic aspirations more effectively.

Note 1 See “Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors,” https://­int​.­nyt​.­com​/­data​/­documenttools​/­articles​ -­impeachment​-­trump​-­xml​/­b0422e292cebafda​/­f ull​.­pdf.

References Barnhizer, D., ed. 2018. Effective Strategies for Protecting H ­ uman Rights: Economic Sanctions, Use of National Courts and International Fora and Coercive Power. New York: Routledge. Cole, W. M. 2015. “Mind the Gap: State Capacity and the Implementation of H ­ uman Rights Treaties.” International Organ­ization 69:405–441. https://­doi​.­org​/­10​.­1017​ /­S002081831400040X. Donnelly, J. 2014. “State Sovereignty and International ­Human Rights.” Ethics & International Affairs 28:225–238. https://­doi​.­org​/­10​.­1017​/­S0892679414000239. Forsythe, D. P. 1990. “­Human Rights in U.S. Foreign Policy: Retrospect and Prospect.” Po­liti­cal Science Quarterly 105:435–454. https://­doi​.­org​/­10​.­2307​/­2150826. Gebrekidan, S. 2020. “For Autocrats, and ­Others, Coronavirus Is a Chance to Grab Even More Power.” New York Times, April 14. Goldsmith, J., and E. A. Posner. 2006. The Limits of International Law. Oxford: Oxford University Press. Goodman, R., and D. Jinks. 2013. Socializing States: Promoting ­Human Rights through International Law. Oxford: Oxford University Press.

Yesterday, ­Today, and Tomorrow • 187

Green, S. 2017. “When the U.S. Gives Up on H ­ uman Rights, Every­one Suffers.” Foreign Policy, April 4. https://­foreignpolicy​.­com​/­2017​/­04​/­04​/­when​-­the​-­u​-­s​-­g ives​-­up​-­on​ -­human​-­rights​-­everyone​-­suffers​/­. Guzman, A. 2007. How International Law Works: A Rational Choice Theory. Oxford: Oxford University Press. Hafner-­Burton, E. M. 2005. “Trading H ­ uman Rights: How Preferential Trade Agreements Influence Government Repression.” International Organ­ization 59:593–629. https://­doi​.­org​/­10​.­1017​/­S0020818305050216. —­—­—. 2009. Forced to Be Good: Why Trade Agreements Boost ­Human Rights. Ithaca, NY: Cornell University Press. —­—­—. 2013. Making H ­ uman Rights a Real­ity. Prince­ton, NJ: Prince­ton University Press. Hafner-­Burton, E. M., S. D. Hyde, and R. S. Jablonski. 2014. “When Do Governments Resort to Election Vio­lence?” British Journal of Po­liti­cal Science 44:149–179. https://­doi​.­org​/­10​.­1017​/­S0007123412000671. —­—­—. 2018. “Surviving Elections: Election Vio­lence, Incumbent Victory and Post-­ election Repercussions.” British Journal of Po­liti­cal Science 48:459–488. https://­doi​ .­org​/­10​.­1017​/­S000712341600020X. Hafner-­Burton, E. M., and K. Tsutsui. 2005. “­Human Rights in a Globalizing World: The Paradox of Empty Promises.” American Journal of Sociology 110:1373–1411. https://­doi​.­org ​/­10​.­1086​/­428442 —­—­—. 2007. “Justice Lost! The Failure of International H ­ uman Rights Law to M ­ atter Where Needed Most.” Journal of Peace Research 44:407–425. https://­doi​.­org​/­10​.­1177​ /­0022343307078942. Haggard, S., and R. Kaufman. 2021. Backsliding: Demo­cratic Regress in the Con­ temporary World. Cambridge: Cambridge University Press. Hathaway, O. A. 2001–2002. “Do H ­ uman Rights Treaties Make a Difference?” Yale Law Journal 111:108. Hopgood, S. 2015. The Endtimes of ­Human Rights. Repr. ed. Ithaca, NY: Cornell University Press. ­Human Rights Watch. 2021. “World Report: China, Events of 2020.” Keilitz, I. 2020. “Illiberalism Enabled by the Coronavirus Pandemic: An Existential Threat to Judicial In­de­pen­dence.” International Journal for Court Administration 11 (2). https://­doi​.­org​/­10​.­36745​/­ijca​.­339. Kreutz, J. 2015. “­Human Rights, Geostrategy, and EU Foreign Policy, 1989–2008.” International Organ­ization 69:195–217. https://­doi​.­org​/­10​.­1017​/­S0020818314000368. Mchangama, J., and G. Verdirame. 2013. “The Danger of ­Human Rights Proliferation.” Foreign Affairs, July 24. Mertus, J. 2004. Bait and Switch: ­Human Rights and U.S. Foreign Policy. New York: Routledge. Neumayer, E. 2005. “Do International H ­ uman Rights Treaties Improve Re­spect for ­Human Rights?” Journal of Conflict Resolution 49:925–953. Obydenkova, V., and A. Libman. 2019. Authoritarian Regionalism in the World of International Organ­izations: Global Perspective and the Eurasian Enigma. Oxford: Oxford University Press. Posner, E. A. 2014. The Twilight of ­Human Rights Law, Inalienable Rights. Oxford: Oxford University Press. “Resolution Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors.” 2021. Rieff, D. 2018. “The End of H ­ uman Rights?” Foreign Policy, April 9.

188 • Emilie M. Hafner-­Burton

Ron, J., D. Crow, and S. Golden. 2013. “The Strug­g le for a Truly Grassroots H ­ uman Rights Movement.” Open Democracy, June 18. https://­w ww​.­opendemocracy​.­net​/­en​ /­openglobalrights​-­openpage​/­struggle​-­for​-­truly​-­grassroots​-­human​-­rights​-­move​/­. Roth, K. 2018. “How to Stand Up for H ­ uman Rights in the Age of Trump.” Foreign Policy, January 18. —­—­—. 2019. “World Report 2020: Rights Trends in China.” ­Human Rights Watch. https://­w ww​.­hrw​.­org ​/­world​-­report​/­2020​/­country​-­chapters​/­china​-­and​-­tibet. Sikkink, K. 2011. The Justice Cascade. New York: Norton. Simmons, B. A. 2009. Mobilizing for ­Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press. https://­doi​.­org​/­10​.­1017​ /­CBO9780511811340. United Nations. 2020. “We Are All in This Together: H ­ uman Rights and COVID-19 Response and Recovery.” https://­w ww​.­un​.­org​/­en​/­un​-­coronavirus​-­communications​ -­team​/­we​-­are​-­a ll​-­together​-­human​-­rights​-­and​-­covid​-­19​-­response​-­and. Woodyatt, A. 2020. “China Poses Global Threat to H ­ uman Rights, HRW Report Finds.” CNN, January 15. Yourish, K., L. Buchanan, and D. Lu. 2021. “The 147 Republicans Who Voted to Overturn Election Results.” New York Times, January 7.

12

Risks and Emancipatory Rights IRENE HADIPRAYITNO

At least in the last de­cade, a consistent and growing number of criticisms has been put forward concerning the relevance of h ­ uman rights. Th ­ ese pessimistic accounts question the legitimacy of ­human rights as a global moral language to address, for example, the consequences of pop­u­lism and authoritarianism found across the globe, as well as the treatment of minorities and the poor. Reflecting on ­these developments, our multidisciplinary volume has examined the ­causes and consequences of vari­ous con­temporary challenges to international ­human rights and the protection of h ­ uman dignity. The discussion is divided into three dif­fer­ent overarching themes: (1) international institutions and global governance of ­human rights, (2) thematic blind spots in the global governance of ­human rights protection, and (3) the domestic and international ­human rights challenges faced by the United States as a key global actor amid the con­temporary global shifts to authoritarianism and illiberal pop­u­lism. This last contribution synthesizes the main points argued by the authors and provides some brief concluding remarks. Problematizing h ­ uman rights as norms, discourses, and practices that are ­under risks requires contributors to this volume to move beyond a universality approach. Each chapter takes into account the contestations of rights both conceptualized in laws and invoked in practice. As mentioned in the introduction,

189

190 • Irene Hadiprayitno

by merely conceptualizing ­human rights as ­legal norms, we tend to ignore the vari­ous ways h ­ uman rights discourses have been used by vari­ous actors to advance concrete po­liti­cal objectives that have direct material consequences. With this in mind, the contributors have explored what has gone wrong, taking on one of the key questions posed to the contributors of this volume: Are h ­ uman rights at risk? Moreover, if so, then how and ­under which conditions are they at risk? Notably, what global proliferation of h ­ uman rights comes with is a number of institutions aimed for the implementation of ­those rights. Following the definition provided by North (1991), institutions are “the humanly devised constraints that structure h ­ uman interactions.” In the context of h ­ uman rights, t­ hese institutions are still based on the traditional model of international law, harking back many centuries to the Treaty of Westphalia. As discussed by the contributors of this volume, a state-­centered approach to global ­human rights is no longer capable of facing the challenges of conflicts and contestations in our con­temporary world. Such an approach to institutionalizing ­human rights norms is based on competing national states as subjects of international order, thus excluding multiple actors and pro­cesses that do not fall ­under the direct responsibility of national states despite taking part in international disputes. They also suffer from a declining relevance due to the growing effort to reject h ­ uman rights as an ethical and ­legal framework that should govern the relationship between states and individuals. Against this background, our starting point in identifying ­whether ­human rights are actually at risk is made by observing the challenges faced by ­these institutions, mainly how they operate within the existing ­legal and po­liti­cal structures. The first correlation that we recognize describes the relationship between the probability of risk vis-­à-­vis institutional competencies, that is, the abilities and capabilities of ­these institutions to achieve the goals designed for and by them. Analyses in the chapters show that risk probability implies occurrences that are foreseeable, but they cannot be identified ex ante. They occasionally happen, and sometimes are location bound. The discussions on the ­Human Rights Council’s Universal Periodic Review and the ASEAN’s AICHR illustrate the point. The detailed investigation provided in the chapter written by Storey and Eccleston-­ Turner reveals prob­lems surrounding the application of the princi­ple of transparency by the OHCHR. A selective pro­cess in transferring crucial information concerning HIV cases from the country and stakeholders’ reports to the Compilation Report jeopardizes the pro­cess of implementing ­human rights. It can thus delegitimize the power of the institution in question. In the same vein, AICHR Commissioners, as observed by Hadiprayitno and Prapto Raharja, have to apply a selective strategy as well, such as choosing between business and h ­ uman rights or religious prosecution. Commissioners, who are mostly appointed by the Ministry of Foreign Affairs, are frequently torn between their loyalties to the cause and the state, ­whether they would act impartially to represent the victims or to protect their own government from being accountable. The latter also

Risks and Emancipatory Rights • 191

concerns the va­ri­e­ties of foreign policy interests taken by dif­fer­ent member states and the dif­fer­ent po­liti­cal supports t­ hese commissioners enjoy. What is observable ­here is a risky trajectory of ­human rights promotion and protection through global institutions. Indeed, the originators of the h ­ uman rights treaties and declarations recognized the role of institutions and sought to build them. However, in the pro­cess, what we per­sis­tently witness is effort initiated and performed by global ­human rights institutions that ran into re­sis­tance from states. Prob­lems with institutional competencies, therefore, are more noticeable in the case of t­ hose institutions that cover international and regional jurisdictions. Th ­ ese institutions come with dif­fer­ent committees and are tasked to review and write reports as well as issue recommendations, but they are unlikely to lead to specific actions. As observed by Jordaan in the case of the African group’s participation at the ­Human Rights Council, the selective approach, not only in what agenda to discuss but also in who can discuss whose agenda, defines the support for ­human rights. The approach may be inevitable, especially when members of t­ hose committees are having the primary aim to finalize their tasks, yet not without the risks of making no pro­gress. Moreover, the ability to show an excellent track rec­ord in meeting the expectations of other stakeholders, such as nongovernmental organ­izations, interest groups, local communities as well as victims, is essential, especially when institutions as impor­tant as the H ­ uman Rights Council has an interest to maintain the continuing relevance of h ­ uman rights to actually protect h ­ uman dignity of the individuals. Our second correlation, which is connected to the first one, is the relationship between the probability of risk and a collective or societal sense of responsibility. This relationship represents what Ulrich Beck famously coined as “or­ga­nized irresponsibility” (2009), by which he means ­there is a diversity of humanly created risks for what p­ eople and organ­izations are “responsible,” in the sense they are its authors but where no one is explic­itly held accountable. International l­ awyers and ­human rights advocates are usually inclined to assume that ­human rights treaties, declarations, and agreements motivate states to comply with their h ­ uman rights obligations to their citizens. A ­ fter all, a lot of diplomatic efforts ­were put ­toward negotiating ­these agreements. In some cases, ­these might be true. In countries that ratified the Convention on the Rights of the Child, as Simmons (2009) shows in her book, the rate of child ­labor did decrease. However, mainstreaming ­human rights, that is, bolstering ­human rights norms not only in the context of public policy but also in separate spheres where statements and rituals need to reflect the core ideas of ­human rights, is not a straightforward ­matter. In that context, Regilme shows how U.S. presidential administrations, even before Trump, faced severe challenges in building a moral consensus among politicians and their constituencies that it is the state’s obligation to guarantee more concrete derivatives of socioeconomic rights, such as universal and high-­ quality health care for American citizens. Opposition to ­human rights treaties,

192 • Irene Hadiprayitno

as observed by Davis, repeatedly happens. Vari­ous cases of torture and other forms of state vio­lence are well publicized and widespread. However, the U.S. government per­sis­tently refuses to accept the applicability of treaties like Convention Against Torture, following the internal consistencies found in the convention, the reservation made by the United States upon ratification, and the Eighth Amendment to the U.S. Constitution. Such a per­sis­tent inconsistency leads to a situation of “or­ga­nized irresponsibility,” where no one is specifically held accountable. Despite the conviction that ­human rights treaties provide a moral minimum that other bodies of law can never supersede, one would find it hard to find such supremacy of h ­ uman rights and their corresponding obligations elaborately mentioned in the treaties. While the two correlations mentioned above are related to procedural aspects, the third one concerns the substantive content of h ­ uman rights. We argue that the probability of risk is linked to globally accepted bound­aries concerning what ­human rights should entail. The prob­lem is related to a much-­discussed issue in the lit­er­a­ture as to ­whether ­human rights should be l­imited, so as to protect a narrow set of h ­ uman interests (such as the interest not to be tortured or the interest to be f­ ree from hunger), or should include a much broader set of interests. Concerning the first, Ignatieff (2001) argues that ­human rights should be understood to consist of a ­limited set of negative rights sufficient to protect ­people from “vio­lence and abuse.” In a similar vein, Hannum (2019) challenges views that expect ­human rights to facilitate the development and influence of other socioeconomic-­political-­moral change agents in ways that are likely to respond to the needs of most ­people in the world. ­These standpoints derive from a Western l­egal tradition that set the historical origin of establishing ­human rights as a global norm a­ fter the Second World War. Nonetheless, in practice the relevance of ­human right goes beyond setting bound­aries for protecting negative rights. For de­cades, the ­human rights movement has brought scrutiny not merely to state vio­lence around the world but to the profound failures of states to treat their citizens equally no ­matter their gender, race, religion, or sexual orientation. As argued by Moyn (2018), activists have also started to prioritize economic and social rights, from employment to housing to food. In this light, contributors to this volume argue not only for a more reflective perspective but also for a broader one. Concerning the first, what we observed in the past de­cade is a regression in h ­ uman rights protection in connection to a development where constitutional practice is no longer in conformity with the idea of protecting freedom and dignity of ­every individual. Such an inconsistency, as argued by ten Napel, puts ­human rights at risk not just outside but also within the West themselves. Western governments are currently sometimes concerned that some member states of the Eu­ro­pean Union, notably Hungary and Poland, are developing in the direction of illiberal democracies. In real­ity, however, many Western countries have themselves turned into proponents of a rather undemo­cratic form of liberalism. In the same vein, Yip appeals

Risks and Emancipatory Rights • 193

for breaking down the structure of rights as invoked in the con­ve­niences of the power­ful, so as to expose how the pro­cess of othering is facilitated by such invocation. Indeed, one should ­factor in the variable of power in defining what rights mean to whom. In the light of developing a broader perspective for understanding h ­ uman rights, Simangan argues for pushing the bound­aries of what legally constitutes as genocide, especially in con­temporary situations where the urgent protection of the rights and lives of p­ eople are systematically at stake. Moreover, the scale and gravity of Duterte’s policy on the “war on drugs” is an assault to ­human rights and dignity of minority groups in the Philippines, particularly the poor. It also challenges the relevance and effectiveness of international ­legal instruments aimed at h ­ uman rights protection. Creating a new l­egal and po­liti­cal opportunity structure to hold the perpetrators accountably is of key interest h ­ ere, as also argued by Ba in the case of Al Mahdi’s act of destruction of cultural heritage. To acquire a broader playing field that allows more protection for the victims, ICC is the most suitable international actor that can and should act ­because victims of this destruction of cultural heritage are not only the residents of Timbuktu and the Malian state but also the international community. Notably, with the proliferation of h ­ uman rights treaties since the mid-­twentieth ­century, a more current rec­ord shows h ­ uman rights as an influential transnational ideal with an intrinsic empowerment value and a distinctive capacity to respond to the con­ temporary needs of the movement. The foregoing discussions reflect the fundamental limitations and milestones of post–­Second World War international h ­ uman rights norms—­particularly in terms of its conceptual basis, historical appreciation, practical applications, and normative under­pinnings. International h ­ uman rights law is developed, promoted, and protected at the universal level through the UN h ­ uman rights machinery. Hitherto, development, promotion, and protection at other levels resembled the same machinery, or at least they ­were expected to be in resonance. Two impor­tant points are assumed by that perspective. The institutionalization of ­these rights at the global level would mean, first, that rights can be rigorously promoted at dif­fer­ent levels of public policy and l­ egal enforcement and, second, that such institutionalization ­will clarify the binary exists between duty ­bearer and right holders. The recent timeline shows that maintaining ­those assumptions would mean treating institutionalization as sacred. This implies that if institutionalization fails, it is b­ ecause of the actors, their practices, and their bad intentions, and if it succeeds, it is just the way it was supposed to be ­because the cause is good (Moyn 2012). The contrary represents more of the truth. H ­ uman rights promotion and protection suffer from a general euphoria of aspirations, declarations, and treaties. However, so much of their implementation depends on bureaucracies and leaders, who are often the ones violating the rights. On a brighter side, the proliferation of ­human rights does not happen only through a pro­cess of

194 • Irene Hadiprayitno

institutionalization. ­Human rights offer a cosmopo­liti­cal paradigm that offers a coordinated system based on individuals. It is a conceptual framework with opportunities to redefine the concept of state, law, and politics. Such a dynamic pro­cess is depending on the movements of actors—­state and nonstate, whose decisions on how far h ­ uman rights extend in terms substantive rights and protected groups carry real-­word consequences in ­today’s increasingly individualized international ­human rights system. As argued in Hafner-­Burton’s contribution, what the system calls universal norms are not always universally perceived as norms to aspire to. In some parts of the world, ­human rights is a dirty word, and the movement is seen (­whether correctly or not) as elitist, as serving the interests of the privileged—­such as privileged states, privileged NGOs, privileged elites. The discussions in this volume have shown that the current model of global ­human rights promotion and protection is still using the state-­centered approach of international law based on cooperation to provide solutions. Valuable as this may be to acquire the support of the state and to the cause of promoting ­human rights as norms, the approach has failed to address competition between institutions, corporations, groups, communities, individuals, and other entities. The failure is evident, for instance, in the efforts to enforce the observance of h ­ uman rights to protect vulnerable individuals from pop­u­lism, in­equality, or destruction of cultural heritage. Nonetheless, halting the global proliferation of ­human rights is not a solution e­ ither. Globalization of h ­ uman rights norms is built upon a promise that sooner or ­later every­one w ­ ill have a stronger sense of ­human dignity through concrete public policies that are inspired by ­human rights princi­ ples. As this is far from happening, stopping global efforts to promote and protect ­human rights would ultimately mean ceasing the opportunity of ­those who have not enjoyed them, to never actually be able to claim their rights. Agreements constitute a way we aim to effect change. For ­human rights to bring concrete sociopo­liti­cal change, optimism is required. Understanding the root c­ auses of pessimism t­ oward ­human rights is also impor­tant. Our contributors to this volume have argued for analyzing h ­ uman rights in relation not only to the rule of law but also to po­liti­cal participation, social activism, and combating discriminatory practices against minorities and vulnerable groups and addressing economic in­equality (Sikkink 2019; Hopgood, Snyder, and Vinjamuri 2017). Hitherto, we have witnessed that prob­lems are often addressed by increasing regulatory procedures that are taken along the same lines, although we know that we need to change our thinking to move forward. What we need instead is that this expansion of law and regulations should support the main cause, which is the structural pro­gress in the protection of ­human dignity. Moreover, institutions remain impor­tant, but in order to realize ­human rights, the substantive and procedural contents of the system need to respond to and resonate with ­actual p­ eople’s needs and wants. This means one prob­lem cannot be solved by one approach alone. Furthermore, we are currently living in a decisive

Risks and Emancipatory Rights • 195

de­cade of globalization. We need to deal more with the under­lying issue, which is the extent to which the current h ­ uman rights system is not in control to make substantial pro­gress in protecting the poor and the vulnerable from the per­sis­ tent power expansion and to ensure regressive mea­sures such as policy flips-­ flops, data censoring, or inconsistencies in the understanding of ­human rights are not happening. Policy solutions must be made based on human-­rights-­ oriented considerations, which need to reflect the emancipatory interests of all stakeholders.

References Beck, U. 2009. World at Risk. Cambridge: Polity. Hannum, H. 2019. Rescuing H ­ uman Rights: A Radically Moderate Approach. Cambridge: Cambridge University Press. Hopgood, S., J. Snyder, and L. Vinjamuri, eds. 2017. ­Human Rights ­Futures. Cambridge: Cambridge University Press. Ignatieff, M. 2001. ­Human Rights as Politics and Idolatry. Prince­ton, NJ: Prince­ton University Press. Moyn, S. 2012. The Last Utopia: ­Human Rights in History. Cambridge, MA: Harvard University Press. —­—­—. 2018. Not Enough: ­Human Rights in an Unequal World. Cambridge, MA: Harvard University Press. North, Douglass C. 1991. “Institutions.” Journal of Economic Perspectives 5 (1): 97–112. Sikkink, K. 2019. Evidence for Hope: Making H ­ uman Rights Work in the 21st ­Century. Prince­ton, NJ: Prince­ton University Press. Simmons, B. A. 2009. Mobilizing for ­Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press.

Acknowl­edgments This volume has its origins in an international conference or­ga­nized by Salvador Santino F. Regilme Jr. and Irene Hadiprayitno. The conference, titled “Global ­Human Rights at Risk? Challenges, Prospects, and Reforms,” was held on June 6 and 7, 2019 at The Hague Campus of Leiden University, with the financial support of the Leiden Global Initiative Fund. This was the largest academic conference on ­human rights held in the Netherlands during that year, and perhaps it is the most diverse in terms of disciplinary orientations, gender, institutional affiliations, and intellectual stance. We express our gratitude to the se­lection committee members and donors of Leiden University’s Global Initiative Fund for supporting our conference as well as the secretarial staff of the BA International Studies program of the Humanities Faculty. We thank all the participants, presenters, and student volunteers for this 2019 conference. Many thanks to Lisa Banning, our editor at Rutgers University Press, for her support and interest in this proj­ect. We also thank the two anonymous reviewers for Rutgers University Press for their helpful comments, constructive suggestions, and support. ­Earlier versions of three chapters first appeared in other publications. We thank the publishers for permission to reprint the following articles in this volume: chapter 6 by Oumar Ba: Copyright © 2019 Johns Hopkins University Press, which first appeared in ­Human Rights Quarterly 41, no.  3 (August  2019): 578–595, 2; chapter  7 by Dahlia Simangan, “Is the Philippine ‘War on Drugs’ an Act of Genocide?,” Journal of Genocide Research 20, no. 1 (2018): 68–89, https://­doi​.­org​ /­10​.­1080​/­14623528​.­2017​.­1379939, reprinted by permission of Taylor & Francis Ltd, http://­w ww​.­tandfonline​.­com; chapter 8 by Salvador Santino F. Regilme Jr., “The Decline of American Power and Donald Trump: Reflections on ­Human Rights, Neoliberalism, and the World Order,” Geoforum 102 (2019): 157–166, https://­doi​.­org​/­10​.­1016​/­j​.­geoforum​.­2019​.­04​.­010 (publisher: Elsevier).

197

198 • Acknowl­edgments

Salvador Santino Fulo Regilme Jr. would like to thank his students in his vari­ ous ­human rights courses at Leiden University for their insights, questions, and intellectual provocations. He thanks the Institute for History at Leiden University for the sabbatical grant in 2019 that allowed him to devote more time to work on this proj­ect. He thanks his parents (Cesar and Annie) and only sibling (Nica) for their moral support. He is deeply grateful to his wife, Anh Loan Trinh-­ Regilme, for the provocative questions, feedback, and unwavering support. Irene Hadiprayitno would like to thank her colleagues at the International Studies Program, and at the South and Southeast Asia Group of Leiden Institute for Area Studies, Leiden University for their insights and support for the proj­ect. Salvador Santino F. Regilme Jr. Lansingerland, The Netherlands Irene Hadiprayitno Utrecht, The Netherlands March 27, 2021

Notes on Contributors is an assistant professor in international relations in the Department of Government at Cornell University. His research focuses on international criminal justice norms and regimes and the global governance of atrocity crimes. He also studies worldmaking and visions for and alternatives to the current international order, from Global South perspectives. OUMAR BA

JEFFREY DAVIS is a professor in the Po­liti­cal Science Department at the University

of Mary­land, Baltimore County (UMBC). His research and teaching focus on the strug­gle to enforce ­human rights law. He is the author of Seeking ­Human Rights Justice in Latin Amer­i­ca (2014) and Justice Across Borders (2008). MARK ECCLESTON-­T URNER is a se­nior lecturer in global health law at King’s College

London. He is also the 2020 distinguished visiting professor in international law and infectious diseases at Georgetown University, USA. IRENE HADIPRAYITNO is an assistant professor in international studies at the Leiden

Institute of Area Studies, Leiden University. Her research focuses on the dialectical interplay between global and local h ­ uman rights practices, specifically in relation to market liberalization. She has a PhD in po­liti­cal economy of h ­ uman rights from the Faculty of Law, Utrecht University, the Netherlands. is the John D. and Catherine T. MacArthur Professor of International Justice and ­Human Rights and director of the Laboratory on International Law and Regulation at the School of Global Policy and Strategy, University of California, San Diego. She is a leader in policy-­relevant research on international law, studying when and why international laws work and ­don’t work. EMILIE M. HAFNER-­B URTON

199

200 • Notes on Contributors

is an associate professor in the Department of Po­liti­cal and International Studies at Rhodes University. His research focuses on the UN ­Human Rights Council and the ­human rights foreign policies of African countries. He is increasingly interested in the relationships between rightwing pop­u­lism and the liberal order. EDUARD JORDAAN

is an associate professor in the Department of International Relations at Bina Nusantara University in Jakarta, Indonesia, founder of Synergy Policies, and se­nior advisor for the Foundation of International ­Human Rights Reporting Standard. She served as Indonesia’s representative to the ASEAN Intergovernmental Commission on H ­ uman Rights (2016–2018). DINNA PRAPTO RAHARJA

is tenured university lecturer in international relations and ­human rights at the Institute for History, Leiden University in the Netherlands. He is the author of Aid Imperium: United States Foreign Policy and ­Human Rights in Post–­Cold War Southeast Asia (2021) and coeditor of American Hegemony and the Rise of Emerging Powers: Cooperation or Conflict (2018). He holds a joint PhD in po­liti­cal science and North American studies from the Freie Universität Berlin, and he previously studied at Yale, Osnabrück, and Göttingen. Previously, he worked as a Käte Hamburger fellow on global cooperation based in Germany, as a Fox international fellow at the MacMillan Center for Area and International Studies at Yale University, and as assistant professor of international relations within the Department of Po­liti­cal Science at Northern Illinois University and a visiting research fellow at the Comparative Constitutionalism Group of the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen, Germany. He is the 2019 inaugural winner of the International Studies Association’s Asia-­Pacific Best Conference Paper Award. SALVADOR SANTINO  F. REGILME  JR.

is an associate professor at Hiroshima University. She is a former JSPS postdoctoral research fellow at the United Nations University in Tokyo and holds a PhD in international relations from the Australian National University. Her research interests include postconflict peacebuilding, the peace-­ sustainability nexus, international relations in the Anthropocene, and h ­ uman rights issues in the Philippines. DAHLIA SIMANGAN

is a lecturer in law and associate director of the Centre for H ­ uman Rights at Birmingham City University, where she also leads the UPR Proj­ect at BCU. Her research focuses on the UPR mechanism and international ­human rights, predominantly from the perspective of w ­ omen’s rights and the abolition of capital punishment. ALICE STOREY

PhD, is an associate professor of constitutional and administrative law at Leiden University in the Netherlands. In 2014 he was HANS-­M ARTIEN TEN NAPEL,

Notes on Contributors • 201

awarded a research fellowship in ­legal studies at the Center of Theological Inquiry in Prince­ton, NJ, which enabled him to be in full-­time residence at CTI for the academic year 2014–2015. In 2017, he published, as the fruit of his research fellowship, the monograph Constitutionalism, Democracy and Religious Freedom: To Be Fully ­Human. He is also coeditor and coauthor of three recent volumes, Regulating Po­liti­cal Parties: Eu­ro­pean Democracies in Comparative Perspective (2014), The Powers That Be: Rethinking the Separation of Powers (2015), and Een nieuwe politieke formule: Ideeën voor staat en samenleving geïnspireerd door Alexis de Tocqueville (A New Po­liti­cal Formula: Ideas for State and Society Inspired by Alexis de Tocqueville, 2021). is an assistant professor at the College of Law, Hamad bin Khalifa University, Doha. She is also a l­ egal practitioner admitted to practice in E ­ ngland and Wales and Hong Kong. Her research focuses on armed conflicts and international law, with a par­tic­u­lar interest in the use of social theories. She holds a PhD in international law and international relations from the Gradu­ate Institute of International and Development Studies, Geneva. KA LOK YIP

Index Af­g han­i­stan, 78, 79, 84, 124 African Group, 40–46, 191 AICHR, 16, 61–74, 190 Al Qaeda, 95, 147 ASEAN, 61–74, 190 authoritarianism, 5, 52, 113, 125, 130, 131, 135, 174, 189 Brexit, 166 Burundi, 43, 44, 45, 50 China, 12, 17, 18, 47, 53, 128–129, 134, 135, 143, 179, 180 civil society, 4, 16, 32, 35, 43, 44, 48, 50, 64–68, 176, 180, 183, 184 Clinton, Bill, 98, 99 Cold War, 7, 8, 123, 134, 152, 160, 177 consensus, 16, 61–75, 127, 128, 167, 169, 191 constitutionalism, 158, 159, 163, 165, 167 Convention on the Rights of the Child, 191 Côte d’Ivoire, 41, 42, 51 crimes against humanity, 8, 41, 94, 107–109, 111, 115 culture, 8, 27, 33, 70, 95, 165, 173, 174, 175, 184 dignity, 3–7, 10, 14, 16, 18, 72, 116, 135, 143, 144, 161, 162, 180, 189, 191–194 discourse, 4–17, 130, 132, 133, 136, 157, 158, 176, 178, 180, 189, 190

Duterte, Rodrigo, 4, 5, 10, 17, 106–116, 131, 132, 136, 193 emerging economies, 126 Eurocentric, 7, 8, 16, 79 Eu­ro­pean Court of H ­ uman Rights, 78, 142, 162 exceptionalism, 114, 142, 146, 147, 152 Extraordinary Chambers in the Courts of Cambodia, 94 GDP, 129 General Assembly, 26, 52, 96, 98, 108, 177 Genocide Convention, 107–109, 115 Global North, 4, 5, 7–9, 14, 16, 126, 131–135 global order, 9, 125, 126, 134 Global South, 4, 5, 7–15, 126, 129, 131 Hafner-­Burton, Emilie, 173, 194 heritage, 14–16, 92–103, 193, 194 HIV, 15, 26, 30, 31–35, 195 Holocaust, 108, 109 Hopgood, Stephen, 9, 13, 42, 43 humanitarian assistance, 10 humanitarian law, 28, 85, 96 ­Human Rights Council (UNHRC), 15, 26, 40, 114, 133, 177, 180, 191 ­Human Rights Watch, 4, 34, 113, 123, 179 imperialism, 85, 88, 136, 181, 184 in­equality, 7, 70, 124–126, 128, 132, 134, 143, 185, 194 203

204 • Index

international community, 17, 92, 93, 96, 97–102, 145, 163, 193 International Covenant on Civil and Po­liti­cal Rights, 3, 29, 86, 141 International Covenant on Economic and Social and Cultural Rights, 3 International Criminal Court, 8, 93, 100, 107, 109, 175 international criminal law, 94 International Criminal Tribunal for Rwanda, 94 International Criminal Tribunal for the former Yugo­slavia, 94 Iraq, 78–88, 124 jurisdiction, 80, 81, 94, 96, 109, 115, 143, 148, 150, 152, 191 jus ad bellum, 87 Latin Amer­i­ca and Ca­rib­bean Group, 40, 51 legitimacy, 4, 10, 12, 15–17, 25, 31, 32, 35, 35, 36, 53, 62, 72, 85, 112, 124, 126, 132, 135, 160, 161, 174, 180, 181, 189 Le Pen, Marine, 5 lex specialis, 85–87, 182 LGBT, 33 liberalism, 124, 127, 134, 162 mass killing, 112, 113, 115 Mutua, Makau, 7, 12, 20 Myanmar, 19, 51–52, 63, 70, 180 natu­ral law, 157–161, 163, 165–172 neo­co­lo­nial­ism, 64 neoliberalism, 130–132, 134, 136, 197 neoliberalization, 7, 127 Nepal, 140–141 NGOs, 152, 181, 183, 186, 194 norms, 6, 9, 10, 15–18, 62, 64, 68–74, 88, 92, 97–98, 130, 135, 142, 146, 161, 174–16, 178, 180–181, 185–186, 189–191, 193–194 Obama, Barack, 11, 15, 18, 40, 42, 43, 49, 50, 53, 127, 128, 133, 134, 137 Office of the High Commissioner for ­Human Rights (OHCHR), 15, 26–36, 44, 45, 190 Orban, Viktor, 5

Philippines, the, 4, 5, 14, 17, 18, 51, 70, 106, 107, 110–116, 131–136 polarization, 11, 70, 111, 112, 114, 125 po­liti­cal community, 6, 10, 78, 81 po­liti­cal rights, 3, 4, 8, 29, 41, 43, 46, 47, 49, 50, 63, 86, 107, 123, 131, 132, 141, 161, 177, 179, 185 pop­u­lism, 5, 12, 15, 36, 52, 111, 131, 134, 174, 176, 177, 179, 185, 189, 194 poverty, 7, 13, 70, 107, 126, 185 radicalization, 125 Regilme, Salvador Santino, 3, 6, 7, 9, 11–13, 107, 112, 123, 124, 126, 128–131, 133, 134, 191 regional h ­ uman rights bodies, 62, 68 religion, 41, 60, 70, 71, 89, 94, 96, 103, 140, 141, 144, 145, 157, 162, 173, 192 risk society, 9, 18 Rome Statute, 95, 103, 107, 109, 114, 115 rule of law, 5, 43, 47, 48, 50, 107, 112, 144, 151, 159, 162, 194 Rwanda, 45, 54, 94, 98, 103, 108, 110 Security Council, 8, 98, 108 South Africa, 11, 26, 33, 34, 36, 48, 51, 165 sovereignty, 9, 11, 17, 47, 48, 61, 69, 72, 74, 143, 160, 174–176, 180–183, 186 Special Court for Sierra Leone, 94 Syria, 5, 14, 41, 43, 44, 49 Timbuktu, 16, 17, 94–97, 99–102 transparency, 15, 25–31, 33–36 Trump, Donald, 4, 11, 12, 15, 17, 42, 43, 49–52, 54, 124–136 UN Charter, 3, 98, 141, 143, 145, 146 UN Convention Against Torture (UNCAT), 147 UNESCO, 17, 31, 93–95, 97, 99–102 United Kingdom, 35, 80, 82, 84, 87, 89, 141–143, 146, 166 United States, 4, 5, 9–11, 14, 15, 17, 18, 26, 29, 30, 32, 41–43, 49, 53, 103, 123–153, 158, 160, 165, 166, 175, 177, 178, 180, 186 Universal Declaration of ­Human Rights (UDHR), 3, 8, 28, 64, 141, 144, 145, 148, 150, 152, 163, 168–170

Index • 205

Universal Periodic Review, 15, 25–36 U.S. Supreme Court, 29, 30, 84, 141–144, 146 Venezuela, 5, 51, 180 war on drugs, 14, 15, 17, 106–116, 193 Wilders, Geert, 5, 131

­ omen’s rights, 157 w World Conference on ­Human Rights in Vienna, 4, 163 World Trade Organ­ization, 160 Xi Jinping, 129, 132, 179 Yemen, 5, 51, 149