Human Rights and International Law (25): Rights Inflation

There has been a steady increase in the number of different human rights recognized in international treaties.A similar, though less outspoken growth took place on the national level. The founding document of modern human rights law, the Universal Declaration, only contained 30 rights. I’ve complained several times before about this “inflation” of rights. On the one hand, human rights serve the realization of certain universal human values, and if some of these values face new obstacles then new human rights may be necessary. For example, if the internet has now become indispensable for human communication and expression then a right to internet access should be recognized. Let’s not forget that human rights have always evolved.

On the other hand, a right should be something important. It’s exceptional by definition. Not all rules or aspirations ought to be labelled as human rights. A right is a particularly strong moral claim, giving rise to equally strong duties. A proliferation of duties makes it hard to fulfill duties, and a blurring of the lines between important and less important duties results in a loss of sense of urgency. And finally, rights cost money. The more rights we have, the less money we can spend on each.

More posts on this series are here.

Human Rights and International Law (23): The Dilemma of Treaty Ratification Rates

In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.

The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.

Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.

Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.

All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.

Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.

So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.

I’m not ashamed to say that I can’t see an easy way out.

More posts on this series are here.

Human Rights and International Law (22): The Usefulness of Retroactive Laws

George Steiner, in his magnificent novel about the fate of an escaped Adolf Hitler in post-war South America, describes rights as an ontological totality, or, in other words, a reality that encompasses the whole world and all phenomena in it. Rights are not just a set of local commands, only valid in some corner of the world or at some moment in history, or only applicable to a certain class of people. It would be unacceptable to have one part of reality – either a part of the world or a part of time – that is free from the moral power of rights.

The Israeli secret agents who, in Steiner’s book, captured the old Hitler in the forests of South America rightly believed that he could be tried by their makeshift jungle court and that their present-day norms dealing with genocide and persecution could be used to judge him, even though these norms did not exist at the time when Hitler committed his crimes or in the places where he committed them.

Human rights are therefore an exception to the otherwise very sensible rule that laws should not be applied retroactively or “ex post facto”. Certain actions that take place in a certain country at a certain moment in time, and that are not illegal in the context of the law as it is valid in the country and at the time, may afterwards – after the facts – be judged as violations of human rights, even if human rights were not part of positive law at the time. Otherwise, a tyrannical legislator such as Hitler may make it forever impossible to judge his deeds of oppression and to punish him, even after he and his regime are defeated. We shouldn’t be willing to accept an absolute definition of the prohibition on retroactive laws that leads to impunity. If violations of human rights can only be punished according to the laws that are in force in the country in which the violations occur, and that are in force at the moment that they occur, then a bit of creative legislation will lead to total freedom of action for the most brutal dictators. And no change of regime or military defeat will ever harm them. They will have a life-long insurance against justice.

However, the prohibition on retroactive laws is an important achievement, and is even part of the internationally accepted corpus of human rights. See for example article 15 of the International Covenant on Civil and Political Rights:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

The fact that human rights laws are an exception to the general rule is justifiable on two grounds:

  • First, it would be unreasonable to require that the system of human rights contain the seeds of its own destruction. Requiring the system to incorporate an absolute prohibition on retroactive laws, one that also makes retroactive human rights laws impossible, would mean introducing one rule in the system that can undo all other human rights rules. The absolute rule on retroactive laws would allow malevolent legislators to neutralize all other human rights rules in the system.
  • Second, the main rationale for the rule on retroactive laws is the fact that we must be able to know in advance whether our actions are or are not permitted by the law. Otherwise we are unable to plan our actions in a manner that is appropriate for law-abiding citizens and we run the risk of inadvertently violating the law. A law that is unknown to citizens is plainly absurd, and retroactive laws are by definition unknown before they are introduced. If laws are enacted that punish actions after they have occurred, then we risk being harmed by the unknown penal consequences of our actions, actions that we believe are legal. However, this rationale is absent in the case of human rights. Even if human rights are not part of existing law, most people will not inadvertently violate human rights. Human rights, even if they are not part of the law, are known to most citizens, and those who violate them know that even if their law allows them to do so, they can one day be held to account. Punishing someone on the basis of human rights that were not part of the law when the punishable act was committed, is clearly not the same thing as punishing someone for driving in a pedestrian zone when this zone was accessible for cars at the moment of the “infraction”.

Rights violations must always be punishable, even if the law that makes them punishable only comes into force after the violations have occurred, for example after the overthrow of a dictatorship or after the military defeat of the violators. All other acts that do not imply a violation of human rights, can only be punishable if they are a crime according to the law at the moment that these acts are committed. Generally, one cannot punish someone for an act that is not a crime and only becomes a crime afterwards, because otherwise this person is unable to know whether his act is legal or illegal and is unable to plan his actions in a way that fits a law-abiding citizen.

The exception to the general rule – this general rule being itself a particular case of the even more general rule of “nullum crimen sine lege“, no crime without a law – was introduced by the Nuremberg Tribunal.

[C]rimes against humanity were made punishable even if perpetrated in accordance with domestic laws … In so doing, it [the tribunal] indubitably applied ex post facto law; in other words it applied international law retroactively”. A. Cassese, International Law in a Divided World, p. 291-292.

[C]rimes against humanity … were defined in the Tribunal’s Charter as follows: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. In some respects, crimes against humanity are wider than war crimes; they can be committed before a war as well as during a war, and they can be directed against “any civilian population”, including the wrongdoing state’s own population. The prohibition of “crimes against humanity” thus constituted an exception to the old rule that a state was entitled to treat its nationals as it pleased; and it is fairly clear that this prohibition was not accepted as part of international law before 1945″. M. Akehurst, A Modern Introduction to International Law, p. 278-279.

Why do I discuss all this? The obvious temporal aspect of retroactive laws can have spatial consequences. If we are not bound by the rule on retroactive laws where human rights are concerned – which is, I admit, a somewhat stretched interpretation of the Nuremberg exception that only mentions some types of rights violation – then we can do as if human rights are law and we can always punish rights violations, even if these violations were not illegal at the moment that they were committed. We can apply this principle in a spatial dimension rather than a temporal dimension. If we can act as if human rights were law in a previous period of history in which they evidently were not law, then we can also act as if they are law in another place in the world, a place in which they are not yet part of the local law.

This way we can elude the perpetual discussions about the application of international law, about the force of human rights treaties in domestic law, about the role of reservations, about the priority or superiority of international law, about the extent to which some or all human rights are part of international customary law, about whether human rights are part of ius cogens etc. For me, this is no fundamental modification of the Nuremberg-principle, but it has far-reaching consequences. And it is not as farfetched as it may seem at first glance. Most people will agree that it would be wrong to judge someone solely by the laws of his country. Laws, after all, can be incomplete or even immoral.

Human Rights and International Law (21): Human Rights and the Irrelevance of the Law

If you want to promote respect for human rights you’re likely to turn to the law, and not just any law: human rights are usually if not always included in constitutions and in the human rights treaties that countries have accepted. They are, in other works, part of the basic law. You hope and expect that those in charge of verifying respect for the law and enforcing this respect when it’s absent will see that the case you bring before them is a clear violation of human rights – clear on the basis of the evidence you present – and will use their legal monopoly of violence in order to force the violators to stop, to respect the law and to remedy the harm that is done to you or to those you represent. Judicial courts, including international courts, and enforcement agencies such as the police force, the military, peacekeepers and such, are believed to be the institutions that are best placed to promote respect for human rights law.

You may have many good reasons for this belief: there’s the authority of the law as a special kind of rule, stronger and more commonly accepted than rules of morality, and there’s the possibility to use violence as a means to coerce. You may also have good reasons to believe that these legal and enforcement institutions will never be perfect: there can be perjury, judges may be incapable, suspects can escape, the police may be corrupt, laws can be counterproductive etc. Still, you strongly believe that the law is the best you can hope for in a world of imperfect humans, and certainly better than self-defense or persuasion.

Many of us will recognize our own beliefs in this description. However, one could easily call these beliefs naive. Look at the Supreme Court in the U.S. for instance. Would there be so much bickering over the nomination of new Justices by acting Presidents, if the judicial protection of rights was the quasi-mechanical process that I just described? Or is this bickering not proof of the fact that the political affiliation of the Justices determines to a large degree their rulings? Why would the other political party systematically object to the Justices proposed by the President if the politics of those Justices don’t make a lot of difference in the way they rule? But if those politics do make a lot of difference, what is left of the credibility of the system of law as a means to enforce respect for rights?

Some of this skepticism is the basis of the theory of legal indeterminacy. This theory states that laws have nothing to do with how judicial cases come out; that lawyers and judges can manipulate laws and the legal system in order to justify any decision they please; and that any possible result in any legal dispute can be justified as the legally correct outcome. If laws do not determine or – according to a more moderate form of the theory – do not significantly constrain judicial decisions, then it’s often futile or even risky to ask a judge to rule on a supposed rights violation. You may get the result you want, but only if the judges share your moral, political or religious outlook. In the worst case, your tormentor is vindicated, which will only encourage him and others like him.

The theory of indeterminacy is corroborated by the historical shifts in rulings based on the same texts. Take for example the death penalty in the U.S., which has been ruled both constitutional and unconstitutional. Of course, the indeterminacy of the law is not always the fault of judges, lawyers or prosecutors. The legislators also have a role to play. Laws have to be clear and unequivocal.

On the other hand, it’s impossible to require strict determinacy: no law, however carefully crafted, will produce one and the same legally acceptable type of outcome over decades. There will always be so-called hard cases that require interpretation and choices. And because beliefs and opinions change over time, interpretations and choice will also change. Still, in all legal systems in the world, there seems to be much more indeterminacy than what most of us believe would be optimal.

Take another example: international criminal justice. Here as well it’s clear that the equal application of the law is just a sick joke. Security Council Resolutions – which can be seen as quasi-judicial – are notoriously inconsistent, and their application is even more inconsistent. The International Criminal Court, one of the best international legal institutions around, only manages to prosecute the worst violators in the poorest and geopolitically irrelevant parts of Africa. China merely has to hint at possible economic consequences and all human rights talk about China – let alone action against China – stops instantly. Never mind the fact that China has accepted human rights treaties. Russia is part of the Council of Europe and has therefore accepted the jurisdiction of the most powerful international human rights court in the world. And yet, we all know< that human rights in Russia are far from safe. International human rights law clearly suffers from collective action problems, perverse incentives, competing priorities and double standards.

So, if it's naive to rely only on the law, which other means do we have in order to promote respect for human rights? The two major alternatives to law are story-telling and honor. Read more about those here and here respectively.

Self-Defeating Human Rights Policies (7): Qaddafi and the ICC

Another example of good intentions going wrong:

One of the many puzzles surrounding Muammar Qaddafi was his refusal to go into exile. Once NATO intervened on behalf of the rebels and Tripoli fell, Qaddafi must have known that he would eventually lose the war and that this would mean death. Instead of leaving the country, he decided to stay.

Why? One surprising answer has to do with the International Criminal Court. It used to be that exile was an attractive long-term option for dictators to take. Rather than stay and fight, they could live their lives in wealth and comfort in beautiful and stable places such as Paris or the Bahamas.

This changed as more and more countries ratified the Rome Statute of the ICC. Now seeking asylum is no longer easy or particularly attractive. Dictators can try to convince countries such as France, Britain, Venezuela, Mexico or Spain to let them settle in their capital cities or along their coastlines. But since all have ratified Rome, moving there is tantamount to turning oneself in to be prosecuted for war crimes. Qaddafi could seek refuge in countries that have not yet ratified Rome, such as the United States or Cuba or Zimbabwe or Sudan or Saudi Arabia. But those countries are either unwilling to accept him (the U.S. and Saudi Arabia) or unable to credibly commit to protecting him over time (Cuba, Zimbabwe, Sudan). How long could Qaddafi trust that the current regime in Cuba or Zimbabwe will remain in power to protect him? …

What Qaddafi’s behavior reveals is a potentially unexpected and unfortunate side-effect of an increasingly successful ICC. By limiting the options nasty dictators have to seek exile, it is increasingly forcing them to stay. And by forcing them to stay, it could, inadvertently, be encouraging war. (source)

More on the ICC here. More self-defeating human rights policies here.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality.

What Are Human Rights? (20): Universal Rights

Legally and morally, human rights are universal norms and rules. Almost all countries in the world have accepted international treaties that translate human rights into law, or have accepted membership of international institutions which proclaim to respect human rights or work towards the realization of human rights (such as the UN). Moreover, most if not all national constitutions proclaim human rights to be part of the country’s highest law. Even North-Korea recently changed its constitution in this sense.

The example of North-Korea makes it obvious that legal universality isn’t the same thing as universality tout court. There are in fact three types of universality – legal, moral and factual universality: universal acceptance of legal rules, universal acceptance of moral rules, and universal respect for legal/moral rules. Ultimately, it’s the last one that counts, of course. These three types don’t require each other, but the last one obviously benefits from the presence of the first two:

  • Legal universality. Legal consensus doesn’t require moral or factual universality. Countries can adopt legal rules for other reasons than moral conviction, and legal rules are – by definition I would say, otherwise we wouldn’t need any legal rules – regularly violated.
  • Moral universality: there’s moral universality when human rights are part of the “morality of the world” (or Weltethos), or – in other words – are accepted as peremptory moral rules by all of the world’s cultures, nations, subcultures, religions etc. This doesn’t require legal universality. You can have moral consensus and still have a rogue dictator somewhere who has refused to sign a treaty. Nor does it require factual universality, again because you don’t need a rule – legal or moral – for something that is a fact.
  • Factual universality: human rights are not just norms but facts; there are no human rights violations. Again, this doesn’t require legal or moral universality, since actual respect for human rights may have other causes than legal or moral pressure. However, it’s fair to say that without legal and  – especially – moral universality, factual universality is highly unlikely (although many would say that it’s utopian in any case).

Notwithstanding the prominence of human rights talk in almost all domains of life and all corners of the world, there is no moral universality. There are certain ideologies and schools of thought (yes, there’s a difference) that argue against the universal value of human rights. Either they argue against human rights in general, or – more commonly – they argue against certain elements of the system of human rights: for instance, they may reject certain types of human rights (e.g. economic rights), or they may reject the “absoluteness” of human rights and accept that certain human rights can be bracketed in certain circumstances when higher values are in danger (e.g. the use of torture in emergencies). Examples of arguments against the universality of the entire system of human rights can be found in the theory called “cultural relativism“, or in the view that economic development has priority over human rights.