‘Can We Still Afford Human Rights?’ This was the provocative question asked by the four editors of the book Can We Still Afford Human Rights? Critical Reflections on Universality, Proliferation and Costs (Edward Elgar 2020). A question which several authors aim to answer in their contributions to the book. In the volume, 14 chapters focus on one of the three interlinked topics of universality, proliferation and costs. In this blog series, three posts relating to the book will focus on one of these topics respectively. In this post Dr. Dalia Palombo discusses the proliferation of human rights and considers how this has led to both empowerment through and backlash against human rights.
Although not everyone agrees on the exact dates, there is a general understanding that the 90s were an exciting decade for human rights (Moyn 2012; Simpson 2012): the Soviet Union collapsed, ending an era with a world divided in two; the decolonization process came to an end on the basis of, among other concepts, human rights; human rights courts such as the European or Inter-American Court of Human Rights were put into full use with an increasing number of countries joining the respective conventions, while other courts, such as the African Court on Human and Peoples’ Rights, were established; almost every state in the world joined at least some of the UN human rights treaties and treaty bodies; and human rights became such mainstream cultural values that some scholars have defined them as a secular religion.
Twenty years later, states are pulling out of international treaties, increasingly ignoring the decisions of human rights courts and tribunals, and populist leaders are arguing that human rights protecting minorities are an impediment to the rights of the majority, i.e. ‘the people’.
What went wrong?
To make sense of this, one could read the work of a number of scholars that analysed the history of human rights and revealed their multiple flaws (Hopgood 2015; Moyn 2012; Moyn 2018; Posner 2014; Douzinas 2000). In sum, human rights are at the same time universal values aspiring to overcome the state-centric legal system of international law in favour of an anthropocentric alternative, as well as legal instruments embedded in that very traditional system of international law. As a result, while inspiring the oppressed, they suffer from a constant lack of enforcement and are unable to deliver justice. Some even argue that human rights are embedded in a neoliberal rhetoric that is contributing to furthering an unequal and unjust system that helps powerful states and non-state actors, such as multinational enterprises, while leaving at its margins the oppressed (Baars 2019; Baars 2016; David Kennedy 2002; Dunkan Kennedy 2002).
How can human rights blossom against this background?
With such a contradictory and weak machinery, how could anyone believe that it is possible to achieve justice through human rights? An important part of the answer for the past thirty years has been through proliferation. Human rights may not always offer much in terms of legal enforcement, but they are an extremely flexible tool. As a result, they have been able to incorporate, year after year, much of the struggles of the world. Advocates, NGOs, litigators, and victims themselves have attempted to use human rights to achieve justice in domestic and international courts and as a strong argumentative tool in the political arena (Koh 1996; Cancado Trindade 2009; Fredman 2008; Mowbray 2004).
Does proliferation help human rights to blossom?
Thus, proliferation empowered human rights and made them a stronger instrument to fight injustices. However, such empowerment has its pitfalls: if thirty years ago human rights were commonly understood as the apolitical values that guarantee human dignity, they have increasingly been perceived as a political tool that may be used to achieve a particular agenda. The politicization of human rights made them at the same time stronger instruments to fight injustices and weaker values that are less accepted across the political spectrum.
In the middle of this conundrum, we find human rights adjudicative bodies. They are often perceived as being the victims of their success because they receive an increasing number of cases filed by people that have no other chance to seek justice. When a human rights court embraces judicial activism and creatively interprets its treaty, it empowers victims. It demonstrates that their actions have a real-life effect not only on their own case, but potentially on many others, and on the construction of the human rights system of justice. However, this form of rights proliferation by adjudicative bodies is met with criticism from those who are keen to preserve the status quo. In recent years, the backlash against human rights has been directed against not only judges, but also international courts, treaty bodies, institutions and, ultimately, the very concept of human rights (Bradley and Goldsmith 2000; Hoffmann 2009).
Is blossoming possible under the snow?
So, what to do if proliferation may eventually result in the collapse of the human rights architecture? Should we encourage the proliferation of human rights, attempt to avoid an inevitable backlash against it or look for alternative values or avenues to enhance justice? Part of the answer to this question is determined by who the people behind the ‘we’ are. We, the advocates for human rights, may well answer ‘we should advocate for proliferation and use human rights as a political instrument’, we, the judges, may answer ‘we should continue to consider human rights as apolitical constitutional values’ in an attempt to avoid a possible backlash. But what about ‘we’, the academic community? I guess the answer may be that we, the scholars, disagree on how to address this problem, but we are all attempting to understand it by providing our contribution, which is sometimes analytical, sometimes critical, and sometimes normative.
In Chapter 7, Human rights adjudication: between hopes and failures, I argue that there is no perfect utopia that could eradicate structural inequalities and injustices. However, keeping within the same concept both a tool that could be used to seek justice across countries and, at the same time, the foundational values that we all share as human beings, might be one of the most remarkable features of human rights. The duality of human rights provided them with a unique resilience that has allowed them to survive despite multiple failures. In the end, some flowers manage to blossom even under the snow.
Dr. Dalia Palombo is a Senior Research Fellow at the Institute for Business Ethics, University of St. Gallen (Switzerland). She is the author of Business and Human Rights: The Obligations of the European Home States’ (Hart Publishing, 2020).
& Dalia PALOMBO, "Is human rights proliferation resulting in a system failure?", Leuven Blog for Public Law, 25 November 2020, https://www.leuvenpubliclaw.com/is-human-rights-proliferation-resulting-in-a-system-failure (geraadpleegd op 21 April 2021)
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