Irreconcilable tensions? Global human rights institutions and democracy

There is a growing sense around the world that global rights frameworks and domestic democratic institutions are not serving people well.

All around us, we see an apparent fracturing of people’s faith in liberal democracy, conventionally understood as backed by human rights principles, from two quite different sources. One is from barely winning coalitions of voters (in various democratic states) who support a populist nationalism that scapegoats minorities perceived as responsible for the country’s problems. Often this ideology has its roots in anger among previously privileged groups who feel that other groups’ advancements and shifts in the global economy have eroded their status. There is plenty of analysis of the trajectory of US politics leading to Donald Trump’s election as president to support this interpretation. The recent violent white supremacist rally in Charlottesville, Virginia, and Trump’s reticence to criticize those groups given his electoral base, is one example of the perverse impact that populist forces can have on politicians’ commitment to human rights.

"Perceptions of liberal democratic and human rights principles as tools of oppression are widespread."

The second source is the often legitimate suspicion among many groups—both marginalized minorities in liberal democratic states, and members of non-Western/global South societies—that democracy has never worked for them. Or there is the lingering perception that democracy is a tool of the West employed to keep them weak. Whether it is indigenous groups challenging conventional democratic sovereignty principles, or Russian citizens supporting government crackdowns on activists accused of being foreign agents, perceptions of liberal democratic and human rights principles as tools of oppression are widespread.

Part of the problem is that post-WWII human rights conventions and organizations have insisted that all humans are naturally endowed with universal rights, and human rights are therefore above politics. Human rights organizations assert that rights must be observed everywhere, regardless of political regime type, and thus resist involvement in debates over democracy. Yet the claim that rights are natural and apolitical is difficult to maintain when it is empirically obvious that our understanding of what constitutes human rights has changed and expanded enormously over time. Equal marriage rights for same-sex couples was a radical idea even in the 1990s, yet support for it in the US has risen from 27% to 64% in just the past two decades.

In recent years, our global human rights institutions, including international courts like the European Court of Human Rights, have found it increasingly difficult to avoid becoming involved in politics and questions of democracy. This is especially true when governments on which they are passing judgment are blatantly flouting the rule of law and protecting their power by violating critics’ human rights. A prime example is the ECtHR cases regarding Russian government critic and former business tycoon Mikhail Khodorkovsky, in which the Court strained to provide an unbiased and apolitical verdict, while the Russian government created a domestic legal mechanism to ignore ECtHR rulings.

Flickr/Fibonacci Blue/CC BY 2.0(Some Rights Reserved).

The recent violent white supremacist rally in Charlottesville, Virginia, and Trump’s reticence to criticize those groups given his electoral base, is one example of the perverse impact that populist forces can have on politicians’ commitment to human rights.

One view of the root problem plaguing human rights in democracies—at least in liberal democratic states—is the one expressed by Stephen Hopgood. He argues that human rights activists have been too elitist and focused on international institutions and norms, detached from the grassroots work of domestic democratic politics. Many rights advocates on the left have moved away from their traditional focus on the socioeconomic wellbeing concerns of the middle and working classes, whose votes are crucial for parties to secure to win elections. Consequently, outsider populist candidates have mobilized coalitions of angry, formerly privileged white voters, as in the 2016 US Presidential election and the Brexit vote in the United Kingdom.

Another view, coming from globally or domestically marginalized groups who do not have their roots in Europe, is that the major problem lies in the limitations of our human rights frameworks themselves. These frameworks have their genesis in the enlightenment history of Western Europe; thus, the very conceptualization of “rights” as individualized does not travel well to other regions of the world. Moreover, the liberal rights frameworks even in these states—particularly settler states that colonized indigenous populations—have never been extended to apply equally to all members of those societies. The indigenous pre-colonial societies on those territories had very different ways of defining community wellbeing than our current liberal democratic and human rights frameworks do.

One approach to solving the problem—at least for political parties in the Western democratic states—would be, as Hopgood argues, to turn away from the proliferation of an ever wider set of rights. Instead, he recommends a focus on a “core” set of rights that apply to everyone, and the core institutions of democracy that defend them. Yet, as many members of historically marginalized groups would argue, an equal application of the same rights to everyone, regardless of gender, race, or cultural grouping, has historically not led to equal capacity. For instance, feminists have long argued that applying the same employment leave policies to men and women, without separate maternity leave provisions for women, inevitably leads to the degradation of women’s equal opportunity in the workplace, since only women can bear children.

Another approach might be to think about ways to articulate rights that accommodate more diverse understandings of the kinds of goods to which humans are entitled in life. This requires thinking about how to make rights institutions and principles flexible to account for different cultural understandings, but still coherent enough to stand as principled. How can human rights promoters root rights in different contexts, rather than viewing context as something that human rights principles must “overcome”? Our increasing legalization of global human rights institutions, while helpful in many circumstances, may have the unintended negative side effect of making the principles more rigid and over-specified as they become increasingly codified and directive.

Some specific strategies to achieve this might include diversifying who we see as experts and how we identify evidence as legitimate in adjudicating human rights claims. Much of the history of indigenous land claims, for example, is oral in nature, and courts have only recently begun to accept this kind of evidence as credible, such as in the Canadian Supreme Court’s 1997 Delgamuukw decision. Is it possible to develop institutional practices that are flexible to varying local emphases, while still retaining coherence? In short, can these principles bend without breaking?

Some would argue, more radically, that the solution is to discard human rights as a conceptual framework entirely in many contexts. Instead, the solution would be to orient people’s claims around different concepts, such as benefits, or collective wellbeing (e.g., buen vivir in South America).

The fundamental question, then, is whether the longstanding relationship between democracy and human rights is sustainable for the future. Will solutions come from scaling back and focusing on a limited, core set of human rights, or from opening up our understanding of human rights to more diverse settings and cultural understandings?