Treaties: Law and Reality

Spring 2013

The six core human rights treaties (each + “treaty body”)

• The International Covenant on Civil and Political Rights, adopted in 1966 and which entered into force 23 March 1976

• The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, entered into force 3 January 1976

• The International Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965, entered into force 4 January 4 1969

• The Convention on the Elimination of All Forms of Discrimination Against Women, adopted in 1979, entered into force 3 September 1981

• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984, entered into force 26 June 1987

• The Convention on the Rights of the Child, adopted in 1989, entered into force 2 September 1990

Two struggles for human rights movement

• First, create new language to articulate concerns of individuals in light of state power

• Second, for this language to make a difference in world politics

Compare:

“It is difficult to restrain myself from doing something to stop this attempt to exterminate a race, but I realize I am here as an Ambassador and must abide by the principles of non-interference with the internal affairs of another country.”

Henry Morgenthau, US ambassador to Turkey, to the US secretary of state, August 11, 1915 (quoted in Simmons, p 23)

Looks good on the first front…

• human rights language has replaced other languages of social change: dependency theory; Marxism; justice

• human rights revolution: activists no longer confined to candlelight vigils – sit at table

Alas… not quite as good on the second…

Curious situation

• Much case study optimism

• Much statistical pessimism

• Field of ongoing research

• Beth Simmons, Mobilizing for Human Rights captures state of the field

Diffusion of international norms in human rights area

• networks among domestic/ transnational actors

• put norm-violating states on international agenda; remind liberal states of their identity as preservers of human rights (“naming/ shaming”)

• empower and legitimate claims of domestic opposition against norm-violating governments

And: Spiral effect…

• The Bible of case-study optimism

Kathryn Sikkink, “Agentic Constructivism”

How treaties influence domestic politics: mechanisms

• Change the national policy agenda

• Enhance possibility of litigation

• Mobilize groups (influence values; increase chance of success)

Change the national policy agenda

• Japan: women’s equal employment

• Signed CEDAW, 1980 -- reforms were driven by desire to make a deadline

• Litigation and amendment in the 1990s improvements

0

2

4

6

8

10

12

14

16

number of Supreme Court

cases

1986 1988 1990 1992 1994 1996 1998 2000 2002 2004

Year

Torture litigation in Israel

Cases Filed Cases Decided

1991:Israel ratifies

CAT

1999:Landmark

torture ruling

Helsinki Principles: I. Sovereign equality, respect for rights inherent in sovereignty II. Refraining from the threat or use of force III. Inviolability of frontiersIV. Territorial integrity of States V. Peaceful settlement of disputes VI. Non-intervention in internal affairs VII. Respect for human rights and fundamental freedoms, e.g.

freedom of thought, conscience, religion or belief VIII. Equal rights and self-determination of peoples IX. Co-operation among States X. Fulfillment in good faith of obligations under international law

1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe

• John Lewis Gaddis, in "The Cold War: A New History" (2005): “Leonid Brezhnev had looked forward (….) to the publicity he would gain... when the Soviet public learned of the final settlement of the postwar boundaries for which they had sacrificed so much... [Instead, the Helsinki Accords] gradually became a manifesto of the dissident and liberal movement... [T]he people who lived under these systems — at least the more courageous — could claim official permission to say what they thought."

Human rights norms contributing to transformation of domestic practice

• Dissidents responded to inclusion of human rights norms by creating movements to challenge repressive state practices

• Polish and Czechoslovak government responded by denying they were violating human rights

• tacitly granted greater political space to groups identified with Helsinki norms

November 9, 1989

Statistical Skepticism • Large-scale analyses of causes of oppressions not done before 90s

• Suggest human rights laws/ organizations have only limited effects

• Many governments sign on to global norms, few implement them -- Especially those governments most likely to abuse their citizens

• Efforts at “naming and shaming” do not appear to work much better

Convention Against Torture Ratifications and the Torture Scale

0

0.5

1

1.5

2

2.5

3

Year

Tortu

re S

cale

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

% C

ount

ries

Ratif

ied

CAT

torture % Ratified CAT

Hafner-Burton/Tsutsui:

• “No matter how we measure repression or personal integrity rights, repressive states that allow murder, torture, kidnapping, and other cruel, inhuman, or degrading treatment or punishment of people just as commonly belong to the CCPR and the CAT outlawing these behaviors as governments that protect human rights reasonably well” (p 410f).

How can this be?

• Ratifying a treaty can relieve pressure for change imposed by international actors, who may rely more heavily on positions than effects in evaluating countries’ records.

• reduction in pressure may lead a country that ratifies to improve its practice less than it otherwise might

Good News from Simmons: • Human rights treaty commitments make difference in countries

that are undergoing democratic reforms anyway

• If so, then especially many Latin-American countries and Eastern-European countries will really have been helped substantially in this way

• Concluding the book: “Change has been gradual but encouragingly cumulative. As MLK jr. said: ‘The arc of history is long, but it bends towards justice.’ International human rights treaties have helped to nudge the human race in the right direction.” (p 380)

• Picture that emerges here is that respect for human rights is driven largely by large-scale social and political processes (democracy, peace) – these are historical macro-phenomena not easily affected by policy-makers

• Compare situation in health and health care

But:

• This leaves warning from Hafner-Burton and Tsutsui – that human rights treaties work only where there is some domestic resonance already

• But that also means they do not work to change the behavior of the worst offenders

International HR Movement: Achievements

• Millions globally identify with HR causes, take active interest

• Thousands are professional HR workers or sophisticated volunteers

• Substantial progress in international law, including establishment of new institutions (ICC)

• Increasing frequency of human right litigation in regional and domestic courts

• Development of large number of local, national, international NGOs (often very specialized)

• Increasing emphasis on HR education in schools, colleges, law schools

Thesis

Human rights become politically effective once there is an international network of civil society organizations that takes state power (and other

forms of organized power) as potential and

actual problem, and seeks to hold such

power accountable.

These and many, many others

• Amnesty International

• Human Rights Watch

• Lawyers Committee for Human Rights

• Physicians for Human Rights

• Committee to Protect Journalists

• International Human Rights Law Group (now Global Rights)

• Global Witness