Electronic copy available at: http://ssrn.

com/abstract=2078948
The Future of Human Rights in a Global Order of Change and Continuity
Par Engstrom
1
, Human Rights Consortium, University of London

The remarkable rise of human rights is deeply connected with the expansion of the global
liberal order sustained and promoted by Western States since the end of the Second World
War. From dominant understandings of human rights as individual protections against a
potentially threatening State to the relative exclusion of socio-economic and collective rights,
Western liberal thought has fundamentally shaped both the theory and practice of human
rights. Yet, in recent years much attention has been given to emerging powers such as
Brazil, China, India, and South Africa and the effects their growing influence may have on
the present and future management of issues of global concern. If political, economic and
social power is important in understanding the development of the international human rights
regime, what are the implications as power shifts in the international system? This multi-
faceted question is becoming increasingly crucial to address given incipient debates that
focus on the meaning and wider implications of the rise of non-Western States.

The assertion by rising powers of alternative domestic and regional conceptions of human
rights and their pursuit of different understandings of moral and political legitimacy could
increasingly bring into question the extant human rights regime. The future of human rights
in a changing global order is of a wider significance that goes far beyond the travails of
Western policymakers struggling with the notion that their era of dominance in world affairs
may be coming to an end. For human rights advocates around the world, as well as for rights-
bearing people worldwide, understanding the present and future evolution of human rights
constitutes one of the key challenges of the twenty-first century.

The 2011 London Debates engaged in a variety of ways with these potentially far-reaching
consequences for the international human rights regime. Based on the original contributions
to the London Debates workshop convened in May 2011, the authors in this volume re-visit
the question of the universality of human rights, and ask how universal human rights
standards are interpreted or applied in local contexts of non-Western societies. They explore
how the relationship between sovereignty and human rights is understood in the non-Western
world, and whether it makes sense to speak of non-Western conceptions of human rights, and
if so, what these consist of. And, of course, contributors examine the extent to which we are
actually entering a non-Western world and whether the evolution of human rights has become
decoupled from the hard power of Western States.

In lieu of attempting to summarise the rich discussions in this volume, these concluding
comments will focus on two cross-cutting themes that have been given relatively scant
attention in ongoing debates concerning the potential future trajectory of the global human
rights regime: (i) the return of harder conceptions of State sovereignty and its implications for
human rights enforcement; and (ii) the practice of human rights in an enduring international
system of States.

Sovereignty and Intervention


1
Forthcoming concluding chapter in Simon Bennett (ed.), London Debates 2011: The Future of
Human Rights in a Non-Western World, London: School of Advanced Study. The author thanks all
the participants in the London Debates 2011 for stimulating discussions, Thomas Pegram for his
insightful probing of this chapter, and Simon Bennett and Eadaoin OBrien for their diligent editorial
work.
Electronic copy available at: http://ssrn.com/abstract=2078948
The first theme is related to the perennial tensions that exist between the foundational
principles of the human rights regime and how they are likely to play out in a global system
increasingly characterised by a diffusion of power, preferences, and ideas and values.

The history of the development of human rights in the twentieth century could be read in
terms of a progressive change towards the idea that the relationship between ruler and ruled,
State and citizen, should be a subject of legitimate international concern; that the ill treatment
of citizens should trigger international action; and that the external legitimacy of a State
should depend increasingly on how domestic societies are ordered politically (Hurrell 1999).
In recent decades in particular a range of arguments that purport to legitimise international
concern for the domestic affairs of states have gained significant strength, including the
implications of growing interdependencies; the emergence of a recognisable international
community based on settled norms; and the growing inability of many weak states to
provide stability and protect basic individual rights. These arguments invoke understandings
of sovereignty not as entitlement but as status, of what it means to be a legitimate member of
international society, and of the capacity to engage in increasingly complex transactions with
other members of the system. Clearly, sovereignty in the sense of power of the State over its
nationals has been eroded by the dramatic development of international human rights
institutions and practices. The expansion and increasing degree of intrusiveness of the norms
of international society have, in other words, fundamentally challenged principles of national
sovereignty that give States absolute discretion with regards to the regulation of internal
affairs.
2
As the former UN Secretary-General Kofi Annan (1998:2) argued, sovereignty
implies responsibility, not just power.

These normative shifts have been particularly apparent in contemporary debates over the
appropriate response to massive human rights violations and the legitimacy of coercive
human rights enforcement. Moves towards politically legitimating humanitarian intervention
including the use of force are embodied in the principle of Responsibility to Protect or
RtoP, and associated efforts to redefine threats to international peace and security that have
pushed human rights compliance onto the agenda of the UN Security Council (UNSC). This
development reflects three broad trends in the international enforcement of human rights : (i)
the broadening of interpretations of threats to international peace and security to include mass
atrocities; (ii) the reality of constant renegotiations of State sovereignty in matters of human
rights, and the legitimate form and scope of international intervention in the domestic affairs
of sovereign countries; and (iii) the increased acceptability of the use of force for a broad
range of policy objectives and associated beliefs in the utility of military power. More
specifically, the RtoP doctrine establishes that individual States have a responsibility to
protect their populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. Manifest failure to exercise this responsibility constitutes grounds for intervention,
including the deployment of military forces as a last resort.

This securitisation of human rights violations challenges norms of non-interference in the
internal affairs of sovereign states, and demonstrates the extent to which understandings of
what sovereignty entails have shifted over the course of the last decades. These normative
developments call into question the traditional legal notion that internal political legitimacy is
essentially a matter under the States exclusive jurisdiction, and therefore that it is exempt de
jure even from a soft intervention by international organizations or by the entire
international community (Tson 1996:34). As such they constitute a gradual move away

2
For a fuller discussion of these normative trends see Engstrom (2010).
from the traditional pluralist nature of the international order towards a more solidarist model,
and consequently mark a shift of international law from its de facto approach to statehood
and government towards a normative commitment in favour of liberal values such as the
promotion of human rights and political democracy.

However, the doctrine of RtoP and attempts by militarily powerful Western States to
legitimatise intervention remain highly contested. The more coercive dimensions of human
rights enforcement have prompted significant pushback by some groups of States. Many non-
Western States have traditionally emphasised the importance of protections from external
interference and have opposed the idea and practice of coercive and intrusive interventions,
whether these are military or economic in nature. There is also a strong tendency among
many non-Western States to view international institutions with suspicion and the
international order as entrenching the privileges of Western States. The norms of classical
pluralist international society, sovereign equality, non-intervention, restrictions on the use of
force, and territoriality, remain, in other words, politically salient.

In particular, resistance to the coercive enforcement of international human rights at the
time of writing (March 2012), most acutely manifested in struggles in and over Syria needs
also to be seen in the context of the increasing assertiveness of non-Western States and
shifting global power balances. Indeed, current debates within the UNSC reflect an enduring
and deep attachment to Westphalian understandings of State sovereignty, with Russia and
China, for example, continuing to argue that the responsibility to protect lies with national
governments, not the international community. As pointed out by Andrew Hurrell (2007:291-
292), important non-Western States, including Brazil, China, India, and Russia, have
continued to share a preference for relatively hard conceptions of national sovereignty, and,
although sometimes professing a liking for multilateralism, have tended to resist the effective
delegation of authority to international bodies.
3
As power shifts globally, understandings of
sovereignty that emphasise sovereign equality are likely to reassert themselves, challenging
the demands and expectations of advocates of intervention. It is important to note, however,
that the pluralist understandings of equal sovereignty and restrictions on the use of force have
distinctly European roots and with the spread of European international society beyond
Europe, these norms have offered significant, yet fragile, protections for weaker States. Seen
from this perspective, rising powers remain distinctly status-quo countries, especially when
compared to the radical revisionism of Western States in recent decades with regards to
humanitarian intervention and RtoP, for example.

As unfolding struggles over RtoP demonstrate, notions of sovereignty are prone to change,
and the potential for innovation, pushback, reversal and stagnation (however understood), is
ever present. This has significant implications for the international human rights regime, as
one cannot assume that emerging powers will simply be absorbed into the current global
order. Countries such as Brazil, China, India, and South Africa are not likely to develop
approaches to human rights in line with the moral consensus that many human rights
advocates, and Western policy-makers, seek to advance. Yet, as (or if?) the clout of rising
non-Western powers continues to grow, they will have to manage increasing expectations
that they should play a more active and forceful role in the international human rights regime
and that they should assume greater responsibilities in response to, for example, humanitarian
emergencies.

3
However, when it comes to delegating effective authority to international institutions, many non-Western
States have, as Hurrell (Ibid.) points out, much in common with the United States. Within this company, the
European preference for more elaborate forms of institutionalized global governance represents the outlier.

Moreover, for many, the increasing pluralism of voices in global politics and in the
international human rights regime is to be welcomed. After all, over the course of the last
decade Western governments have been at the forefront in efforts to shift the normative
balance between human rights and security towards the latter in the name of the war on
terrorism. The results of these efforts both at home (explosive growth of anti-terrorism
legislation) and abroad (military intervention and collusion in torture) are widely
documented. The widespread human rights violations that have resulted from these policies,
combined with the lack of accountability of those responsible, have shown the inherent
power-based logic underpinning the global human rights regime. And, on most measures, the
use of force for the enforcement of human rights has a chequered record, including in the
most recent intervention by NATO in Libya, which is considered by many Western
governments and commentators as an example of a successful application of RtoP principles.
It is precisely for these reasons that the resilience of the human rights system is not best
measured in terms of the degree of support from Western governments. On the contrary, the
normative strength can be seen in the ways in which the human rights discourse has re-
asserted itself in spite of these challenges, challenging even the most powerful States, both
Western and non-Western.

Human Rights and the Enduring State System in an Imperfect World

The second theme concerns the present and future practice of human rights in an international
system characterised by enduring State power.

The idea of human rights is deeply embedded in the international State system. On the
traditional conception of human rights, human rights are to be enjoyed in national societies as
rights under national law. The purpose of international law, on this view, is to influence
States to recognise and accept human rights, to reflect these rights in their national
constitutions and laws, to respect and ensure their enjoyment through national institutions,
and to incorporate them into national ways of life (Henkin 1990). The inherited statism and
sovereignty of traditional international law and relations have proven to be remarkably robust
over the decades, and international human rights instruments continue to affirm the primacy
of State implementation of human rights. This perspective on the political dynamics of the
international human rights regime views human rights as intimately tied to State power. For
some, human rights only come to matter when powerful States take them up and seek to use
their own power to enforce human rights standards. For others, the human rights regime
might matter but primarily because of what it can do to shift the incentives facing member
States by generating publicity, by naming and shaming, by creating positive or negative
linkages with other issues.

Indeed, many NGOs and advocacy groups seek to leverage State power in their mobilisation
strategies in order to sway public opinion within the domestic political systems of powerful
States, especially in the United States and Europe. And with global economic and political
power shifting East and South, influential NGOs such as Human Rights Watch are now
increasingly focusing their lobbying and fundraising efforts on New Delhi, Brasilia, and
Pretoria. However, such strategic reconfigurations do not hide the fact that many international
human rights organisations are grappling with the question of how human rights will fare in
the face of the challenges by emerging powers to the current political power structure
(Brown THIS VOLUME). From this perspective, the power shifts in the international system
may not fundamentally change either human rights strategies or the prospects for human
rights enforcement. As Widney Brown argues in this volume, human rights have always
been vulnerable to the political climate, and the correlation between State actors and human
rights violations is not as simple as old-good versus new-bad or even East versus West or
North versus South (Brown THIS VOLUME).

Clearly, State policies on human rights tend to be inconsistent at best, especially when human
rights policies clash with what is perceived to be in States self-interest. As Brown
emphasises, emerging powers are not likely to be any less political in their use and abuse of
human rights or less likely to have double standards (Brown THIS VOLUME). Indeed,
when the interests of States involve commercial ties with abusing States or the prospects of
information from a terrorist suspect subjected to stress and duress by foreign intelligence
services, human rights considerations tend to be given fairly short shrift, whether the State
concerned is the United Kingdom, China, or Sweden.

However, does the success of the global human rights project depend on its ongoing
championing by powerful States? Is it possible to move away from the idea that States are the
owners of human rights, and to locate them instead in the agency of individuals and groups
whose struggles human rights seek to promote and protect. The flourishing of human rights
over the last few decades is undoubtedly in part due to an intrinsic appeal to a broad range of
people of the very concept of human rights. The human rights vocabulary is indeed a potent
power in political life as it constructs a universal concern and provides a powerful language
in the advocacy for progressive change. In and by itself, such a vocabulary fulfils an
important function in the face of the widespread reality of human suffering.
4


And yet, the most pressing and thorny ethical dilemmas in the field of human rights are as
much about practice and process as they are about philosophical foundations and discursive
constructs. A concern with the application and implementation of human rights is therefore as
much about practice as ideas. For any theory to be morally attractive it has to sustain an
account of how it would, or should, be translated into practice. Human rights have specific
roots in traditions of moral theory, but the ways in which they are implemented are most
certainly shaped by the social environment in which they operate.

Most people still enjoy most of their internationally recognised human rights most of the time
through the mediation of the States of which they are citizens. On moral grounds this is
clearly reprehensible since peoples life opportunities are to a large extent dependent on
accidents of birth or residence. However, given the primacy of sovereign territorial States in
international society, concern for the application and implementation of human rights in
political life is likely to continue to be primarily directed towards embedding the
transnational discourse on human rights in concrete political practices and specific
institutional structures at the national level. The future of human rights is likely to remain
intimately linked with questions of State power.

An alternative system could indeed be one in which human rights form part of the law and
practice of transnational civil society, in which the State loses its privileged place and

4
Widney Brown (THIS VOLUME) makes this point about the universality of the human condition and
experience powerfully in this volume: [] there is nothing Western about wanting to live free from fear and
free from want. The desire to speak out and to participate in political life at the community and State level is
alive and well. One of the reasons this is so crucial is that it allows people to demand that their governments
fulfil the social contract and protect them from violence, from economic hardship and from deprivation of
economic and social rights.
becomes but one participant in a broader social process. The important role of social
movements and civil society actors in creating favourable conditions under which human
rights norms are internalised in domestic societies has been rightly emphasised in the human
rights literature. However, it is clearly the case that the State has made a strong return in
Western societies in recent years; partly as a direct result of the dramatic failures of the
market that led to the ongoing economic crisis. And in important non-Western countries, such
as China, Russia, and Brazil, States are in charge of the commanding heights of economies
and societies; albeit in distinctly different ways.

Hence the enduring importance of States having the capacity and willingness to address
human rights demands, and the continuing centrality of State power for the effectiveness, but
also the legitimacy, of the global human rights project. First, in terms of effectiveness, many
of todays most intractable human rights challenges, whether in relation to non-State actors
(e.g. terrorism and private military companies), transnational corporations, or the fragility and
weaknesses of many contemporary polities, State action is often less a source of human rights
abuses than the absence of such action. This highlights the shift away from human rights
abuses that are unambiguously the result of State action. For an international human rights
system that was constructed on the twin premises of the protection of individuals against the
State, and the legal notion of State responsibility, this shift constitutes a major challenge. The
paradox then is that though the State is potentially a violator of human rights, it may also be
humanitys best hope for the fulfilment of a wide range of human rights.

Second, although an elusive concept, legitimacy is derived from process as well as outcome.
That is, on the one hand procedural legitimacy is enhanced by participatory deliberative
processes, by the transparency of procedures, and by the perceived fairness of those
procedures. Yet, even the most legitimate process is undermined by a lack of efficiency and
practicability in its delivery. As argued by Charles Beitz (2001:269-282), central to the
function of human rights is their potential to identify conditions that societys institutions
should meet if we are to consider them to be legitimate. From this perspective, effective and
legitimate human rights policies should seek to transform State power.

However, human rights will remain deeply contested. We should not underestimate the
considerable difficulty in reaching a stable and sustained consensus on human rights in a
fundamentally unequal and diverse world, within as well as between societies. From claims
to the effect that human rights are alien to certain cultures to allegations that they reflect the
imposition of values by powerful actors, human rights are fraught with conflict. At the very
minimum therefore, for human rights and efforts on their behalf to be legitimate and
effective they have to be demanded and fought for by individuals and groups concerned. It is
important to note, however, that this does not exclude efforts to extend assistance to rights-
bearing agents in order for them to effectively exercise agency. In many contexts, positive
steps are indeed required to ensure that individuals and groups have the minimum material
resources necessary for the effective exercise of their agency (Sen 2001).

In sum, the growing power and influence of emerging States is likely to shape the future
development of the global human rights regime. As the emergence and consolidation of the
modern human rights regime coincided with and resulted from the expansion of the global
liberal order sustained and promoted by Western States, the regime may be facing potentially
destabilising challenges. Values are not easily separated from the hard power that underpins
them, and as (or if) Western liberalism becomes increasingly challenged by rising powers, the
status of human rights as the dominant moral discourse may gradually but steadily erode.

There are, nonetheless, powerful reasons for thoughtful wishing when imagining the future
of the global human rights regime. The political discourse and practice of human rights in a
period of political and economic flux is indeed likely to be challenged by the emergence of
distinctive political discourses that emphasise different sets of values and priorities. Yet the
power of human rights as a language of social criticism and as standards of behaviour and
acceptable treatment of human beings is likely to endure.
Bibliography

Annan, Kofi. 1998. Intervention. Ditchley Foundation Lecture XXXV, p. 2.
Beitz, Charles. R. 2001. Human Rights as a Common Concern. American Political Science
Review 95, pp.269-282.
Engstrom, Par. 2010. The Effectiveness of International and Regional Human Rights
Regimes. In: Robert A. Denemark (ed.). The International Studies Encyclopedia.
Oxford: Blackwell Publishing.
Henkin, Louis. 1990. The Age of Rights. New York, NY: Columbia University Press.
Hurrell, Andrew. 1999. Power, Principles and Prudence: Protecting Human Rights in a
Deeply Divided World. In: Tim Dunne and Nicholas J. Wheeler (eds.). Human Rights
in Global Politics. Cambridge: Cambridge University Press.
Hurrell, Andrew. 2007. On Global Order: Power, Values, and the Constitution of
International Society. Oxford: Oxford University Press.
Sen, Amartya. K. 2001. Development as Freedom. Oxford: Oxford University Press.
Tson, Fernando R. 1996. Changing Perceptions of Domestic Jurisdiction and Intervention,
In: Tom Farer (ed.). Beyond Sovereignty: Collectively Defending Democracy in the
Americas. Baltimore: John Hopkins University Press.