International Law - II [Law 165]

Unit- V (C)

Prepared and Presented

by
Manish Nepal
 5.3 Human Rights & Politics:
• The international political arena came to recognize human rights in
1948 when countries agreed to the UDHR, which states that every
human being is born free & none should be held in servitude.
• Also, no one should be subject to arbitrary arrest, detention, degrading
punishment, inhumane treatment & torture. Everyone has the freedom
of movement & the right to leave the country. People should also enjoy
the freedom of thoughts, religions, & expression.
• Although every person deserves the natural right to life, liberty &
personal security, it is not uncommon for a lot of people to suffer from
human rights violation due to political reasons.
• Human rights violation is particularly rampant in developing countries
where the government is corrupt or lack resources to ensure the
fulfillment of basic rights or needs of the people.
• The Human rights violation to these underdeveloped countries are aggravated
by the politics of the Western world or VETO-powered nations, either to
seizure the natural resources of these countries, or to capture strategically
important places, or to overthrough undesire governmental regime.
• For eg- The government in Sudan has long been accused as a human right
violator who orchestrates the genocide in Darfur. Yet China refuses to take
action against the genocide in Sudan because of a political & financial reason:
as China needs to maintain a good diplomatic relationship with Sudan in order
to purchase the oil from Sudan.
• Another example of human right violation due to political reasons is the
“Guantanamo Detention Center” in Cuba, where alleged terrorists are held.
They are subject to torture. Some even lost their life. This is a big scandal for
the US as it is one of the strongest advocate for the protection of human
rights.
• As stated in the UDHR, violation of human rights is not limited only to
inhumane treatment but to restrictions of movement.
• For eg- in many African refugee camps (as well as everywhere), the
refugees are prohibited by their host government to leave the camp as the
government worries that the refugees will take away the employment
opportunities of the local people. The rights of these refugees are violated
as they are held in the camp as if they are prisoners.
• Politics in the global arena often blocks the protection of human rights,
particularly within the UN where the member states are hesitant to act on
even outrageous human rights violations to protect the underprivileged &
vulnerable groups in the world.
• Many governments have resisted certain international norms since they
are perceived to be contradictory to their local political interests and the
established cultural & social values.
• Furthermore, it has been argued that certain rights under the UDHR, such as
the rights to marriage & religious freedoms & the private ownership of the
means of production, are directly contradictory to the norms & practices in
many non-Western societies.
• For example, India is the largest democracy in the world & the poster-child for
cultural diversity; yet, marital rape is a legalized practice which has been
defended under the garb of protecting the sanctity of traditional Indian
conjugal relations.
• Similarly, in Saudi Arabia, dominant religious groups claim that it contradicts
their beliefs to recognize religious & marriage freedoms.
• The Global South’s most influential ethical & religious frameworks from Islam,
Hinduism, Buddhism, & Confucianism, all prescribe a deep sense of
commitment to human fulfilment & the dignity of human life. All of these
traditions recognize the need for justice of the common man & restrictions on
authority for the greater moral good of humanity.
• The extreme version of relativism goes well beyond describing a
diversity of beliefs about right & wrong among cultures. It argues that
since beliefs about rights stem from socialisation within a given culture,
no culture ought to impose what must be understood as its own ideas
on others, whether or not it endows its own ideas with the flattering
attribute of universality.
• Some relativists would further argue that each culture ought to respect
the values of other cultures, but such tolerance or respect does not
seem to be required by the relativist position. It leads to patent
absurdities; ought one to respect slavery or genocide within another
culture? 
• Relativist arguments thus qualify or reject the trend of the postwar
movement toward viewing human rights as universal; as the same
everywhere.
• But relativist arguments are not totally at odds with this human rights
corpus, this International Bill of Rights.  One important aspiration of
human rights norms is to preserve difference, to allow groups to
maintain their own cultures, languages, religions.
• Each culture has the right to survive, insulated to some extent from the
forces of the larger world that would uproot some of its essentials &
perhaps destroy it in its entirety by absorbing it into, say, mainstream
global modernisation.
• This other aspect of the human rights movement, the value placed on
the separateness & survival of cultures, is not entirely distinct from the
relativist position that, if universal human rights cannot touch my
culture, how can they really be universal?
• The fading away of the Cold War accompanying the collapse of the
Soviet empire brought to an end the decades-long debates about
socialism v. capitalism: socialists have a different conception of rights
that, for example, stresses the meaninglessness of many liberal rights
like free speech while giving paramount importance to economic and
social rights.
• One might have thought that the world community could at last move
towards universalism & avoid diversion to these polemical exchanges
between East & West.
• That thought turned out in a short time to be unrealistic. In place of two
vast antagonistic ideologies, we now see cultural & other forms of
particularism exhibited in a great range & number of ethnic conflicts.
The extraordinary violence that has attended these conflicts is all too
familiar to us: abhorrent actions, systematic destructiveness.  
• New oppositions displaced the capitalist-socialist, democratic-Marxist
conflicts of the cold war period. Those oppositions included: radically
different views of human rights in parts of the third world & in liberal
Western states.
• Relativist argument became resurgent. Other trends , political,
philosophical, cultural, encouraged this resurgence.
• For example, our fragmented, ‘post-modern’ world sees everywhere
the growth of multicultural societies, through demographic shifts
including immigration & through cultural changes, often accompanied
by a stress on the particular rather than universal. In this multicultural
world of alternative understandings the cultural relativist debate fits as
does a hand in one’s glove.
• So, some of the issues which describes human rights & politics are:
• conflict getween global north & global south (or east & west)
• power game & human rights institutions;
• the limits of political liberalism;
• the rise of authoritarian populism;
• movements against racism & white supremacism;
• wars & self-determination;
• migration, citizenship & human rights;
• identity politics;
• sex, gender & human rights;
• the threats to human rights;
• care, dignity & the renewal of human rights etc.
 global human right order after cold war:
• the global human rights order requires not only a shift to a more
emancipatory notion of human dignity but also an emphasis on global
justice & material compensation within & between the Global North &
South.
• Human dignity embraces all types of human rights claims ranging from
political rights to socio-economic rights, among many others. So, there
are need for three reforms of international human rights:
• (1) a shift from the Western human rights to the more inclusive &
pluralist notion of human dignity;
• (2) the promotion of global justice by rewriting the rules of global
economic governance; &,
• (3) the mandatory political education on human rights & human dignity.
• Since the end of the Cold War, various human rights norms have gained
traction not only in terms of their further codification in the
international legal system & institutionalization in global governance.
• Indeed, those norms have appeared prominently as aspirational goals
in many countries’ national constitutions & domestic legal frameworks.
• In praxis, the number of countries as well as the number of human
rights treaties & conventions have dramatically increased, despite the
apparently deteriorating global human rights situation.
• The political science discipline, meanwhile, is divided on whether global
or domestic factors primarily shape human rights outcomes over space
& time.
• Philosophers & political theorists, on the other hand, primarily reflect
upon new political utopias that would effectively realize human rights at
the global level, & their creative thought experiments & philosophical
reflections derive inspiration from a wide range of moral, normative,
political, & legal justifications.
• Whereas powerful Western states dominate global human rights
discourses to the extent that local norms & sentiments from the Global
South are systematically discarded, so it is the need for reinforcing local
networks of activists, institutions, & political systems in order for human
rights to reflect local sensitivities.
• In this way, human rights claims do not necessarily eradicate nation-state
sovereignty; rather, human rights claims & obligations are negotiated,
redefined, & practiced at local communities that operate within the
framework of nation-states & with institutionalized state agencies.
• Hence, the notion of a ‘human rights state’ evades the reductionist
puzzle of choosing state sovereignty over universal human rights.
Instead it helps for empowering local, grass-roots, & marginalized
actors & civil society groups to define & to construct their
ownstrategies for human dignity & human rights obligations.
• Thus, the sovereign equality of member states’ as well as for stronger
‘shared governance’ is essential, whereby nation-states absorb mutual
recognition for their allegiance to human rights.
• Rather than the cosmopolitan human rights state that is grounded at
the ‘bottom’ is laudable primarily because scholarly & policy debates
usually focus on ‘top-down’, Western-oriented, & universalizing
approaches.
• Now the question arises: How can mutual recognition emerge in this
‘bottom-up’ approach if political agents from around the globe have
profoundly different ideological, cultural, religious, and personal
understandings & interpretations about ‘human rights’? Which is
questioable... similarly it is of sheer debate as....
• How and under which conditions can the global community of equally
sovereign ‘human rights states’ emerge if there is a wide divergence in
terms of constructive processes & substantive formulations of what
human rights really constitute within, beyond, & across nation-states?
 factors affecting the development of human rights conception:
• The Complexity of US Foreign Policy & Human Rights Promotion:
• US human rights policy is built on hypocrisy,... there is a more complex
picture of American human rights policy, which is a substantive policy area
that demonstrates the enduring ‘classic struggle between the realist
tradition in foreign affairs…& the idealist tradition…’.
• There are three critical junctures in US human rights policies:
• (1) late 1960s, characterized by American support for anti-communist yet
repressive regimes vis-à-vis the human costs in the Vietnam War;
• (2) 1973, when the US policy establishment & activists focused on South
America where General Pinochet toppled President Allende, thereby
initiating the first generalized human rights hearings in the US congress; &,
• (3) late 1980s, when US policymakers widely expanded the scope of
human rights promotion & liberal reforms in many parts of the globe.
• American foreign policy is based on four empirically informed
arguments:
• First, the deep ideological divisions during the Cold War era facilitated
human rights activism within & beyond the American policy
establishment, yet other American stakeholders also permitted the
pervasive abuses of US allies for the sake of US interests.
• Second, the complexity of US foreign policy construction was
aggravated by a ‘high degree of politicization, & even opportunism’.
• That may be the case when American politicians & policy-makers
strategically deployed ‘human rights’ discourses to score winning
political advantages —particularly on debates in the US Congress, on
foreign aid, democracy promotion initiatives, & other policy spheres in
US external relations.
• Third, US foreign policy & its human rights outcomes cannot be
accurately interpreted by any single theoretical framework, because
‘there were simply too many unique cases worldwide and too many
interests driving American involvement’.
• Thus, divergence in the set of explanatory factors is plausible even if the
outcomes are nominally the same (human rights crisis). Hence, it is
impossible to any form of simplistic generalization of US foreign policy
& its impact on human rights abroad.
• Finally, American human rights policy was constituted by the conflicting
motives, policies, & rhetoric of a wide range of political actors exerting
influence within and beyond the US policy establishment.
• Consequently, the plurality of actors influencing human rights policy
suggests that ‘inconsistency was central to human rights policymaking
and enforcement’.
• Despite those contradictions, US played a pivotal role in the global
diffusion of human rights norms, & maintains that it is quite likely that
those norms would still be considered in the future of American foreign
policy.
• Western Arms-Exporting Democracies & Human Rights Compliance:
• Arms Exports, Human Rights, & International Reputation,
• meanwhlile, there is an important puzzle going on, ie. how & why large
arms-exporting democratic States adopted the emerging trend of
multilateral restrictions of arms export to human rights-abusive states,
as exhibited by states’ support for the Arms Trade Treaty (ATT).
• Notably, the ATT was adopted by the UN General Assembly in 2013 and
became effective in 2014. The adoption of the norm of arms export
restrictions becomes even more ethically problematic, especially when
one considers how these exporting states have financially benefitted
from various trade deals in the past.
• Five arms-exporting democratic states are: Belgium, France, Germany,
United Kingdom, & the United States.
• While the US did not initially support the ATT process during the 2006
UNGA resolution as well as the 2001-2008 UN small arms conferences,
all the other states have officially signed & ratified the ATT except the
US, which has yet to ratify the treaty.
• While there is still a gap between exporting states’ publicly stated policy
& actual practice, arms exporting states’ interest in protecting their
social reputation in the international system created incentives to
commit to ambitious yet ‘responsible’ arms transfer practices.
• This social reputation argument is not only limited to the international
dimension. The exporting states, in the face of an arms trade scandal,
marginally shift to responsible arms transfer practices to protect its
domestic reputation.
• The European Union(EU) & China’s Human Rights Problem:
• In addition, one of the key challenges of the global human rights regime
refers to the issue of whether &, if possible, to what extent can
transnational actors, including key Western countries, could encourage
China to improve its human rights record.
• The impact & dynamics of ‘quiet diplomacy’ that the EU has deployed when
dealing with Chinese government officials on human rights issues.
• the EU has actively implemented ‘constructive dialogue’ since 1995 -devoid
of any public scrutiny & full transparency to external observers - in
encouraging Beijing to take human rights more seriously.
• However, following questions arises: Did the EU’s ‘quiet diplomacy’
substantially impact Beijing to comply with global human rights norms? If
so, how & under which conditions did it shape Beijing’s record of state
repression?
• Intergovernmental Organizations & Human Rights Socialization:
• the role of intergovernmental organizations (IGOs) as ‘important but
often overlooked actors in the globalization & human rights story’.
• These IGOs include the most prominent ones including the EU & the UN
& also some less popular ones among others.
• Transmitting Rights contend that, controlling for a diverse range of
other plausible domestic & transnational factors & pressures, the state’s
patterns of human rights compliance tend to converge with those of
their peer IGO member countries.
• Although the rights-compliant states reinforce each other in the context
of their IGO membership, however, that less compliant member states
also undermine the behavior of other member states.
• To be exact, Transmitting Rights contends that IGOs go beyond their
formal institutional mandates. Particularly, these IGOs function as
effective forums for socialization whereby ‘states can influence each
other’s domestic practices across a wide range of issue areas’.
• Put differently, various IGOs mediate emerging human rights norms
through many diverse networks of interactions amongst influential policy
actors of member-states, who have the capacities to exact those human
rights friendly policies in their home countries.
• several important concerns pertaining to the legitimacy & effectiveness of
global human rights promotion can be stated as:
• First, the role of IGOs in international politics is not fully accepted in some
parts of the globe, most especially by authoritarian & illiberal regimes
that strategically invoke ‘sovereignty’ to deflect exogenous human rights
criticisms. For eg- China & Philipphines.
• Second, we should not overstate the power of IGO networks in
promoting human rights norms amongst & within its member-states;
for an effective global human rights promotion policy depends on
finding a unique yet appropriate combination of transnational &
domestic advocacy & policy strategies that suit the target state.
• While IGOs certainly include influential & human rights-friendly policy-
makers & diplomats, building the intensive cooperation of IGO
networks with the vast networks of transnational & local human rights
NGOs & civil society actors seems to be a more promising approach to
global human rights advocacy.
 References
• Andrew Clapham, Human Right: A Very Short Introduction, 2007, Oxford
University Press.
• Ian Brownlie, Basic Document On Human Rights, 1995, Oxford Clarendon
Press.
• Jack Donnelly, Universal Human Rights in Theory and Practice, Second
Edition, 2010, Manas Publication, New Delhi
• Prof. Rebecca Wallace & Anne Holliday, International Law, Second Edition,
2010, Thomson Reuters (Legal) Limited.
• www.un.org
• Regilme, Salvador Santino F, Jr. “The Global Politics of Human Rights: From
Human Rights to Human Dignity?.” International Political Science Review 212
(2018): doi/10.1177/0192512118757129. Web