Critically assess the implications of legal positivism on the protection of
women’s human rights across the globe!
Introduction
In this essay, I explore the implications of legal positivism on the protection of women’s
human rights in the world. Legal positivism is one of the most widely followed and at the
same time controversial schools of thought within the legal profession and by effect has
influenced the structure, discourse and reality of the way in which rights and law are
perceived in our modern society (see Schauer, 1996). Therefore, critically analysing the
impact it has on the protection of human rights and particularly on women’s human rights is
crucial to understanding the advancements and setbacks that the women’s human rights
movement faces both now and in the future. The analysis leads me to two somewhat
contradictory conclusions. On the one hand, I find justified and far-reaching criticism of the
concept of legal positivism and evidence that it has been a repressing force on the
development of empowering law for women. However, in contrast I find that the
international movement for the advancement of women's human rights has displayed a
tendency towards taking on the legal positivistic approach when arguing in favour of rights.
This in many ways conflicts with the struggle for women’s rights at lower judicial levels.
The paper is structured as follows. I start out with a very brief summary of the
principal notions of legal positivism that have been put forward by its most influential
scholars. I draw from these a definition of legal positivism that will be utilized for the
analysis.1 Next, the impact of legal positivism on the general human rights movement is
assessed, as the protection of women’s human rights falls within its framework and is,
therefore, highly dependent on this relationship. The actual assessment with regard to
women’s human rights is then undertaken, distinguishing between international human
rights law and the protection of women’s human rights through the domestic legal systems.
Finally, I conclude with the most radical reaction towards legal positivism, which has come
from feminist legal scholars who fundamentally condemn the entire concept for reproducing
the ‘fundamental connections between patriarchy and law (Stubbs, 1997: 303)’.
1
This definition is not able to reflect the broad scope of ideas and criticisms that have been issued in relation to
legal positivism, but I do believe it will be sufficient for the analysis of the present subject.
2
Legal Positivism
Hans Kelson (1973), one of the most prominent scholars of legal positivism, argues
that the world that is has to be distinguished as separate from the world that ought to be,
leading to the assertion that there is no way for man to rationally confirm the existence of
one universal morality. In consequence, Kelsen reasons that all values are relative, as they
merely constitute the subjective opinion of the person holding them. Legal positivism is
accordingly defined as the scientific and analytical inquiry of what is given within a legal
system, drawing with this a distinct line to other disciplines such as the ideologically
‘loaded’ fields of ethics, religion and ideas about natural law. Kelson contends that the legal
positivist should focus his analysis on the factual legal reality in which he finds himself.
Law is, therefore, in itself understood to be a neutral entity from which scientifically
valid deductions can be drawn. Any conclusions taken further than this cannot classify as
unbiased analysis of the law as it is and thus belong to the field of politics or an ideology
(see also Raz, 1984). By distinguishing between ‚is’ and ‚ought’, Kelsen figures that any
law – no matter how unethical, immoral, wrong or discriminatory it may be – is a just law,
given that it has gone through the relevant procedure of being recognized by the sovereign
authority.2
A true legal positivist is, therefore, generally critical of any claims to moral validity
or universality of law. Kelson believes that the law can only reflect what human beings have
decided it to be and not stand alone as a universal truth. The concept of what is just – in
terms of a specified legal system - has to be distinguished from what might be seen as moral
in a relative and hypothetical way.
Hart can be considered one of the most influential legal positivists to build on and
transform Kelson’s argument. Like Kelson, Hart negates a necessary connection between
law and morality, as all laws are made by human beings with different values and morals
(Hart, 1961). He agrees with Kelson on the importance of studying law in its pure form;
distinct from any social goals or ethics. Morality can never lead to a ‘right’ decision as there
2
This idea is largely based on early thinkers such as Bentham and Austin who represent the reductionist idea
proclaiming all law to be understood as ‘statements of power and obedience (Green, 2008: Sec.2)’ that are
enforced through the ruling instance.
3
is no universal morality and ‘legal institutions therefore exist to settle authoritatively for
practical purposes what cannot be settled morally (MacCormick, 1996: 169)’.
However, deviating from Kelson, Hart asserts that law can include moral standards and that
morals do influence the legal system, especially in questions that remain under-addressed by
the current set of laws. However, the legal system’s precise function is to ultimately settle
matters that arouse moral controversy, in the correct procedural way. This strand of
argumentation has been termed inclusive legal positivism.
Contrary to Hart, scholars like Joseph Raz have advocated the exclusive legal
positivistic idea of morality and law being strictly differentiated; maintaining that law itself
is the highest authority above which come no moral considerations. Consequently, cases
made within a legal system can be correctly settled by running through the valid legal
process. However, should a case involve questions that go beyond the existing law and the
judge decides to settle it at his or her own discretion, then s/he is officially leaving the
grounds of law and applying morality (Raz, 1979: 49-50).
I have presented this distinction between inclusive and exclusive legal positivism, as
both ideas enjoy recognition among legal scholars. For the purpose of answering the
question set by this essay, I will adopt the inclusive positivists’ definition. I do so as I
assume any negative evaluation that can be issued against this so-called ‘soft positivism
(Himma, 2006)’ from the viewpoint of the human rights movement will equally apply for
exclusive positivist theory (see Raz, 1979). This can be underlined by extensive criticisms
from legal feminists scholars, who have concentrated on Hart’s work (see Stubbs, 1997;
Thornton, 1995) as well as natural law scholars (see Fuller, 1958).
Legal positivism is thus defined as the conception that all law is made by human
beings, that a legal system can exist without any necessary connection to morality, that
the study of law should aspire to a value-free scientific analysis of the law as it is given
by the sovereign authority and not as it ought to be and lastly, that a legal system can in itself - validly settle cases and disputes with the help of logical deduction (see Hart,
1958; Kelsen, 1973; Raz, 1979).
4
Legal Positivism and Human Rights
The approach legal positivism takes towards law fundamentally contrasts with the
idea of universal human rights. In fact, at a conceptual level, one could see them as the
antithesis of each other. We find legal positivism ultimately justifying laws through their
mere existence in a legal system, while rejecting any form of universal morality that could
possibly be of guidance to what is a right and a wrong law. Kelsen’s idea of relative
morality lies at the core of his legal philosophy that denies the existence of universal
normative laws (Weinberger, 1973: XXVI). Although this claim has been made on behalf of
relativists who see human rights as a concept that has to be defined in the specific cultural
and regional contexts, human rights as proclaimed by the United Nations are founded on the
idea of natural rights that every person possesses regardless of his/her cultural or legal
circumstances (Freeman, 2002: 42).
The dilemma here is that although human rights may stem from a universal moral
claim, their actual recognition can largely be attributed to the work of advocates who have
tried to turn them into legal rights (see Fagan, 2003). Thus advocates of the international
human rights doctrine often find themselves arguing with the terminology of legal
positivism, saying that something is a human right, because international human rights law
says so (Freeman, 2002: 42). From an empirical point of view, this development of
institutionalising human rights has even been termed the ‘New Age of Rights (ibid: 32)’,
under which the classic legalism’s approach towards law has been extended to the sphere of
human rights that are now to be protected as they have been written down in international
law. So in a sense, the creation and accession of states to international and regional legal
institutions designed to protect human rights can be seen as a major victory for the
movement that has overcome the disparities between legal rights and moral rights.
Why then, is this system still not effectively protecting women’s human rights? I will
give a brief overview of the idea behind ‘women’s rights as human rights’ and then assess
the way in which the concept of legal positivism has influenced the movement. In order to
more accurately assess the implication of positivism, I distinguish between protecting
women’s human rights at the international and the domestic level. Whereas the mechanisms
in place at the international level are generally seen as appropriate for protecting human
5
rights (but see Waldron, 1987: 179), national laws are often still the focus of substantial
criticism.
Women’s Rights as Human Rights and the implications of Legal Positivism
The International Level
The notion of declaring women’s rights as human rights is a recent development of the
international human rights movement that tries to re-frame women’s issues as human rights
concerns (see Bunch, 1990). Although this might sound somewhat tautological, there are
still considerable deviations between the goals of the human rights movement and those of
feminist groups, which has led to women’s rights being lost somewhere along the way (H.R.
Series, 1995: 2). Drawing on numerous evaluations, it becomes apparent that the structure
and substance of human rights mechanisms already in place have in a bizarre way to date
been part of the constraining force that has oppressed the advancement of women’s human
rights (see e.g. Cook, 1994; Romay, 1994; Stamatopoulou, 1995). It has been pointed out
that
‘[b]ecause the law-making institutions of the international human rights law have
always been, and continue to be, dominated by men, international human rights
law has developed to reflect the experiences of men and largely exclude those of
women, rendering suspect the claim of objectivity […] (Charlesworth, 1995:
103)’.
On this view, the structural inequality women have to endure under international human
rights law has a similar effect on the way women are perceived to that generated by legal
positivism, even though we have seen that the concepts differ fundamentally. This is an
extremely important observation as it tells us a great deal about the way the law today is
actually structured and the way in which women’s human rights activists have tried to
accommodate themselves with it. The movement for women’s human rights has not
advocated a radical critique of legal positivism. They have not attempted to re-structure and
revolutionise the way in which we think about the legal system. Rather they have sought to
transform the way we think about women’s rights so it fits into the already existent legal
mechanism. The implications of legal positivism are addressed at a much lower level of
abstraction using the law as it is to advocate for it to be implemented as it ought to be.
6
The focus of international campaigns has therefore been on the strategic incorporation of
issues concerning the discrimination and violence against women into the existing human
rights framework. Instead of finding new categories of rights, campaigners in this field have
sought to position women’s issues within the legal mechanisms in place. For example, in the
2001 Amnesty International (AI) Special Report on women, acts of domestic violence and
ill treatment of women in many other fields are classified as ‘torture of women in the home
and community (p.3)’. In doing this, AI refers to the UN Convention against Torture to
justify its claim and at the same time hold the state responsible for these crimes.
What we find here is an extremely realistic and strategic approach towards the
compatibility of human rights and gender that clearly makes use of existing tools without
attempting to investigate a new area of rights. In working with the law as it is, the approach
has tried to transform elements of the legal instruments (not the whole structure) that are in
place and that are under the authority of a national state. As the human rights have
principally focussed on the ambiguous position of the state authority as principal protector
and violator of the individual’s rights, it has given the state a similarly prominent position
within its framework to that enjoyed in legal positivism.3 Consequently, many campaigns on
women’s human rights have focussed on demonstrating state responsibility to protect
women from all state and non-state violations of their rights. Since the majority of violations
come from private individuals, the question arises whether this framework is indeed suitable
to address this discriminatory reality (see Knop, 1994). But let us first look at the domestic
level.
3
The positions presented here are of course not exhaustive. Scholars like Celina Romay have more vigorously
criticized the current human rights framework. Nevertheless, she understands the current discourse to be an
appropriate instrument for the protection of women’s human rights, under the condition that women start
actively participating in the human rights dialogue (Romay, 1994: 109).
7
The Domestic Level
The situation at the domestic level within national legal systems paints a different picture.
Whereas the international human rights law is purposefully built on the premise of pre-legal
human ‘rights’, national laws often contradict these and even prove to be discriminatory
against women in both formal and substantive ways. Here, we find the basic function of law
assigned by legal positivism to often be challenged at its foundations. In many cases,
women’s issues find themselves in a sphere where either no law exists, or the law is not in a
position to provide a clear settlement – through the deductive logical reasoning in itself.
Prime examples are the disputes on women’s reproductive rights regarding the free
choice of abortion in the first stage of a pregnancy. There have been few areas of judicial
ruling that have been contested and revised at such a high frequency as in this field. The socalled ‘X’ Case as documented by Human Rights Watch (1995) is a prime example of this
contradiction. The case deals with a fourteen-year-old girl in Ireland who was found to be
pregnant after being raped. When she travelled to Britain so as to have a safe legal abortion,
she was ordered to refrain from such activity and return immediately to Ireland.
Furthermore, she was prohibited from leaving the country for the whole duration of her
pregnancy. Also, the report states ‘at the same time the high court was considering the ‘X’
case, the Irish attorney general threatened Irish newspapers with contempt of court if they
continued to report on the lawsuit (p. 447)’. In the same vein, organisations had been
charged for distributing pro-choice material to inform women of the possibilities they have
in other legal jurisdictions.
What does this tell us both about the influence of morals on the legal system and the
system’s ability to logically deduct correct answers from itself? Although abortion has been
illegal in Ireland for nearly 150 years (ibid: fn 99), the infringement of women’s right to free
movement and additionally women’s right to receive information about abortion options in
other countries have been developments of the past 20 years. Speaking in the terms of legal
positivism, these rulings touch on a new area that has not been explored by the existing
system and thus requires a logical deduction from the judge in charge. Although the judge
might be influenced by his or her own personal moral, s/he will eventually settle the matter
in a correct way. This case serves as an empirical falsification of both the relationship
between law and morals as well as the ability of the legal system to settle these disputes in a
8
correct way. Through prohibiting ‘X’ to leave the present legal system where abortion is
illegal, a moral implication has been issued that she ought not be allowed to have it
performed, thus assuming the unthinkable for legal positivism; that what is prescribes what
ought to be. Also the case demonstrates how at first the campaigning of anti-abortion groups
influenced the rulings of the court and how the resulting international pressure and unrest
‘forced’ the Irish government into respecting women’s civil rights of movement and
information (ibid: 448).
Law here is far from being a socially detached phenomena, it is in fact the perfect
reflection of the social discourse that has taken place and still takes place around the issue of
abortion. Legal rights are the expression of the politics and ‘[t]he conditions that block
access to equal rights are in large part due to a lack of sincere political will to improve the
social circumstances of women (Plata, 1994: 529)’. Issues such as marital rape, domestic
violence and the above-mentioned reproductive rights of women have been at the centre of
social debates and the development of modern societies. Legal positivists have argued that
in the basic discourse of modernity, law is required to have clear lines and provide certainty
- even when it addresses new concepts such as contemporary anti-discrimination legislation
or e.g. abortion legislation (MacCormick, 1996). On this view, Thornton writes that
‘[i]nsistence on multiplicity, intersectionality [of the public and the privates sphere], and
fluidity of subject identities is deeply corrosive of the foundationalism of legal positivism
(1995: 12)’.
The literature on women’s human rights abuses demonstrates that it is precisely this
‘grey area’ where no clear ruling is to be found that women find themselves most confronted
with the boundaries of the law. These socially influenced controversies, which infringe on
women’s human rights in the gravest way, are addressed by legal positivists through
apparent arbitrary settlement: ‘Law settles what moral consensus cannot, whether through
absence or through silence (MacCormick, 1996: 169)’. Evidently, this has been a severe
constrain to the advancement of women’s human rights.
9
Feminism and Legal Positivism
The critique coming from feminist jurisprudence has been the most radical in asserting the
essential misconception of the legal positivistic view on the character of law. By defining
the legal system as a neutral enclave, generations of lawyers have inactively accepted the
injustice of the existing structures and refrained from moral and political discourses that
would have been fundamentally important for societal change that would have advanced
equality and ended discrimination against women. This has led to serious constraints for
feminists in the development of constructive criticism (Stubb, 1997: 303) and to an
‘impoverishment of legal theory (Naffine, 1997: 303)’ in general.
One of the crucial faults of legal positivism is precisely that it has never seen women
as substantive rights-holders as such. Thus, women as the ‘unofficial’ private subjects of the
law have mostly been excluded from the idea of being rational and ‘knowing’ rights-holders
and have therefore found no place within the legal positivistic thought (see Naffine, 1995).
Legal positivism as a sterile analysis of hierarchical orders is thus ultimately seen as a
reinforcement of the law’s patriarchal structures and with it the afore-mentioned negation of
the female human being as an individual rights-holder. Theoretically separating law from
other social phenomena has made it extremely challenging for feminists scholars to criticise
the existing structures as well as the contents of the laws, as the positivistic school does not
engage with the law’s actual substance and sees the system as a pure, socially detached
phenomenon.
Feminist scholars have argued that distinguishing between the public and private sphere
under the liberal pretext – in which the legal positivistic school positions itself - of every
person’s freedom within his/her own personal realm is not only reflected in the content of
the law, but at a more abstract level, also in the actual structure of the legal system (see
Walby, 1997).
10
The public sphere is usually defined as the relationship between the state and the law’s
subject, which mostly refers to the reality of men’s lives. Women’s work and their social
position is assigned to the private sphere of the family and the domestic surroundings which
means that their social reality remains generally unaddressed by the legal system. Family
law usually relates to the traditional family structure of the man being the breadwinner with
a female partner who has the principal duty of caring for the children (see Barnett, 1997:
Ch.5). This concept is thus reflected in many legal systems (see Naffine, 1995). In contrast
to the women’s human rights campaigns, here, the actual structure of the legal system has
been under the scrutiny. Feminists have evidently demonstrated how the private realm has in
many cases become synonymous with the sphere that is not regulated through the sovereign
authority. O’Donovan writes on this:
‘Who then controls the family? It can be argued that non-intervention by law may
result in the state leaving the power with the husband and father whose authority it
legitimates indirectly through public law support for him as breadwinner and
household head. A deliberate policy of non-intervention does not necessarily
mean that an area of behaviour is uncontrolled (O’Donovan, 1997: 150)’
The feminist answer to the implications of legal positivism is therefore its total rejection of
this school of thought that has for too long obstructed a legal revolution that would
acknowledge women as substantively equal subjects and rights-holders and develop
effective regulation to ensure that women are protected in all spheres from patriarchal
dominance and subjection. The assertion is that
‘Feminists will continue to find pursuit of ‘justice’ […] within the parameters of
legalism to be a chimera – always promised, never realised – for we are
attempting to employ in our interests a legal framework that has the express
political function of perpetuating the powerlessness of women […] (Stubbs, 1997:
308)’
The protection of women’s rights will thus never be possible under the existing structures,
as they do not allow for an equal position of women within the legal system. This
argumentation has been decisive for feminist legal scholars in trying to develop a legal
theory that actually acknowledges the role of law as a reproductive agent for social
conditions. Although this approach is justified in the light of the constraints legal positivism
11
has imposed on women’ rights, it faces various challenges. First, with respect to
international law, this approach runs the risk of isolating itself from the general movement
for human rights that has only just recently begun to incorporate gender perspectives into its
work (Bunch, 1990: 497). Secondly, concerning domestic law, pragmatism might raise the
question of effectiveness with regard to a feminist legal theory that negates the fundamental
state structures of society, law and order. One might positively agree with the criticism
issued by feminists, but it is questionable whether such an approach can – at the current
level of development – actually be more productive than working with the existing
instruments pre-conditioned by the state structure (see Knop, 1994: fn 7).
12
Conclusion
This essay has examined legal positivism in relation to women’s human rights and the way
in which it has impacted the achievement of formal and substantial gender equality in
enjoying fundamental human rights. My assessment reveals that legal positivism has been a
repressing force on the development and empowerment of women human rights. However, I
find that within the global movement for the advancement of women's human rights, there
has been a tendency towards taking on the legal positivistic view that 'women's human rights
are rights because the law says so'. Also, through using the legal justification that is often
proclaimed by human rights advocates in general, women’s issues have finally been
incorporated into the broad agenda of many international campaigns and organisation that
previously did not include any gender aspects into their work. At the domestic level the
negative effects of legal positivism are even more visible. The domestic case displayed
above is exemplary for the severe contradictions that exist between the idea of legal
positivism and a vast number of juridical rulings that have principally touched the private
sphere in which women find themselves struggling the most. The radical rejection of legal
positivism through the feminist legal critique exposes a view that asserts legal positivism to
be strictly incompatible with the advancement of women’s development and well-being. The
challenge this argument faces is that it has yet to come up with a realisable alternative
framework that will be more effective in protecting women's human rights than the current
system.
The recommendations to be made from this assessment are twofold. Firstly, at the
international level it is crucial that the movement for women’s human rights confronts the
trade-off between using the existing framework and achieving their goals without
compromise. Secondly, at the domestic level the initiation of and involvement in moral
discourses surrounding the perpetuation of discriminatory laws should be intensified so as to
engage in social change and illustrate the interconnectedness between law and moral values.
13
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16
Is Globalization Inherently Beneficial for the Protection and Promotion of Human
Rights?
Introduction
The protection and promotion of human rights is fraught with challenges. Since the
Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly in
1948, most nations of the world, to one degree or another, have accepted and committed to
the notion that each individual has basic rights and that governments will seek to ensure, to
the extent they are able, the protection of those rights. Yet, despite this alleged mostlyglobal consensus, human rights continue to be flagrantly abused. The situations in North
Korea, the DRC, Uzbekistan and Burma, to name but a few of the countries with wide-scale
human rights abuse, are grim. Many in the human rights community claim that
globalization is largely responsible for creating the very conditions that bring about human
rights abuse (Baxi 2002, Pollis and Schwab 2000). In order to assess the validity of that
claim, and later, to determine whether globalization is as detrimental to the protection and
promotion of human rights as they say, we first must define globalization. As yet there is no
single authoritative definition.
Globalization is a complex concept, comprised of different processes that either seek
to or result in bringing disparate parts of the world closer together (Lechner and Boli 2008,
1). Economic, political, cultural and linguistic processes that globalize people of the world
sometimes advance the human rights project as it is outlined in the UDHR, and at other
times, such as when transnational corporations exploit local impoverished populations for
profit, undermine and even blatantly oppose it. Globalization encompasses much more than
mere global economics - the proliferation of unchecked transnational corporations (TNCs)
and global financial institutions like the World Trade Organization (WTO). It is also a
process by which “global interdependence” (Beetham 1999, 139) increases, a process which
ultimately lessens the divide between very different peoples of the world otherwise
17
separated by distance, language, culture, and religion, for instance. I argue below that, even
if the economic processes of globalization rarely work to the direct benefit of human rights,
without a globalized world, the human rights community would have limited capacity to
protect and promote human rights.
In this essay I explore what it means to protect and promote human rights and use
Thomas Pogge’s (1992) definition of cosmopolitanism to help describe what I see as the
dual nature of the human rights project. The UDHR is an expression of both a moral and
legal commitment to human rights. I argue that “doing” human rights first and foremost
requires a belief in the equal moral worth of each individual. The later codification of
human rights into treaties such as the International Covenant of Civil and Political Rights
(ICCPR) and Economic, Social and Cultural Rights (ICESCR) is but a principal means to
protect human rights. There are limitations to realizing human rights through the law; the
law does little to promote the moral aspect of the human rights project and the global human
rights enforcement mechanisms in place are weak. Nonetheless, the ways in which we have
come to “do” human rights are inseparably linked to rights legalization, the responsibility of
states to protect, and the advocacy local and international human rights organizations
undertake to hold states accountable to the individuals within their jurisdiction.
The protection and promotion of human rights, as they are realized through the law,
the work of the UN, regional human rights bodies, international and local NGOs and
committed groups and individuals, are expressly dependent on the conditions and
developments brought about by globalization. More importantly, promoting the universality
of human rights and the equal moral worth of every individual is itself another process of
globalization: spreading a moral ideology, protected by international law, to everyone,
everywhere. (Freeman 2002, 173). It is because of these reasons globalization can be
nothing but inherently beneficial to rights protection and promotion.
18
Globalization
Globalization is an umbrella term which encompasses a number of different global
processes. The most prominent of these processes is economic globalization, through which
the world is being redefined by free trade, capital flow through open borders and an
international financial market. The growth in numbers of TNCs, many of whom have their
headquarters in Europe and the United States, the proliferation of McDonalds restaurants
and Starbucks cafes, and the dominance of liberal capitalism have caused some to think of
globalization as synonymous with ‘Westernization’ (Sen 2008, 19-21, Pollis and Schwab
2000, 214). The scope of this paper is too narrow to assess this claim. However, regardless
of whether one agrees or disagrees, making this claim is, in fact, acknowledging there is
more at work than mere economic processes. Globalization is also about “opening up
borders” culturally, politically and socially (Freeman 2002, 153).
Cultural and social processes of globalization are based upon the free flow of
information across borders. Because of the development of information technology,
transportation services, and possibilities of studying abroad, for instance, people have much
greater access to one another than they did just 20 years ago. These processes, to one degree
or another, globalize people of the world, causing them to “become connected in more and
different ways across ever greater distances” (Lechner and Boli 2008, 4).
This ideal outcome of globalization – one in which open borders and exchange of
ideas (as well as money and technology) results in a more open, multicultural individual –
does not always take place. Zygmunt Bauman posits this side of globalization with the idea
of “universalism” – “the will to make the world…better than it had been [and] the intention
to make similar the life conditions of everyone and everywhere” (1998, 59), but believes
that this understanding of globalization is no longer valid. Globalization, he continues,
“refers primarily to the global effects, notoriously unintended and unanticipated…”
(Bauman 1998, 60).
19
Indeed, it would be somewhat naïve to believe those who defend globalization
blindly by claiming that free flow of ideas and economic liberalization will bring about
immediate improvement in the lives of those who suffer human rights abuse or who are
poor, unemployed, and marginalized. Critics of globalization argue that as a result of the
imbalance of power in the world, there is no such thing as an equal exchange between the
rich nations of the world and the poor (Baxi 2002). Baxi points out that the concept of a
borderless world for all is absurd; it is only borderless for the powerful:
“The so-called borderless world remains cruelly re-bordered for the violated victims
subject to practice of the politics of cruelty, even barbaric practices of power.
Myanmar is thus borderless for Unocal, though not for Aung San Su Kyi and the
thousands of Burmese people she symbolizes.” (Baxi 2002, 137)
Another way in which globalization directly undermines rights protection and promotion is
the lack of regulation of TNCs. These corporations “have considerable autonomy both from
the ‘home’ governments and from the governments of countries in which they invest”
(Freeman 2002, 157) making it difficult to hold them accountable when they perpetrate
human rights abuse, in particular when they fail to ensure the economic rights of their
employees.
It seems contradictory that processes which seemingly do more harm than good to
the human rights project can be labeled beneficial to the human rights project in general,
insofar as they establish the mechanisms (i.e. internet, flow of people and ideas) through
which the human rights community is able to protect and promote human rights. To be
clear, this paper assesses globalization in terms of how beneficial it is to the protection and
promotion of human rights, not improving human rights per se. In the next section I
examine what it means to protect and promote human rights and what the processes of
globalization do to help further that cause.
Human Rights Protection and Promotion
20
The human rights project is ultimately one with a moral agenda (Meckled-García and
Çali 2006, 1). In its modern conception, human rights have been formalized into the
Universal Declaration of Human Rights, and states have been commissioned to respect each
individual’s equal moral worth and take steps toward realizing that goal4. This commitment
was articulated as such in the UDHR proclamation:
All peoples and all nations, to the end that every individual and every organ of
society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive
measures, national and international, to secure their universal and effective
recognition and observance. (UDHR 1948)
According to this proclamation, human rights protection and promotion, or the human rights
project, as it is termed in this paper, is two-fold: a) teaching and educating respect for
individual rights (a moral agenda), and b) progressive national and international measures to
secure universal recognition and observance of rights (a legal agenda).
Implicit in this human rights proclamation are several key points. The first is the
importance of every single human being. The second is the responsibility of both the
national and international communities to respect and secure the rights of the individual.
The third is the goal to achieve universal and effective recognition and observance of human
rights. I will briefly touch upon the first point, but it is the latter two that deserve particular
attention as I address the question of globalization and rights protection and promotion.
The Importance of the Individual
In the preamble of the UDHR, the governments in the United Nations “reaffirmed
their faith in the fundamental human rights, in the dignity and worth of the human person”
and extended those rights universally, to “every individual and every organ of society”
4
There are many theories of the origins and justifications of human rights. For the purposes
of this paper, I take the UDHR as my starting point as it is the first internationally accepted
definition of human rights.
21
(1948). At the time, the United Nations was comprised of fifty-six states, forty-eight of
whom voted in favor of the Declaration. The other eight abstained5. Because no party voted
against the adoption of the UDHR, it would seem that there was vast consensus on the
shared importance of the worth of the individual. Since then, and despite the near-universal
reaffirmation of states’ commitment to human rights in the 1993 Vienna Declaration, some
critics have claimed that “the specific philosophy upon which the current “universal” and
“official” human rights corpus is based is essentially European” and is not compatible with
other cultural perspectives and practices as they concern the individual (Mutua 2002, 40).
Jack Donnelly argues that it is a matter of historical fact that human rights ideas and practice
first emerged from the West, but that “internationally recognized human rights have been (or
are at least are being) and ought to be adopted, with modest adaptations, by peoples cultures
and peoples across the world” (2003, 63-64).
While there is debate among human rights philosophers about how universal human
rights truly are (Donnelly 2003, 2006), most legal human rights documents reinforce the
UDHR’s claim of their universality: “equal rights of all members of the human family” is
written in both the ICCPR and ICESCR, for example. As far as the law is concerned, if one
is human, one is entitled to the protection of one’s human rights regardless of culture,
religion, gender, language, and so on. Therefore, it would follow that where there are
disagreements about how to implement human rights in a culturally appropriate manner, the
human rights community nonetheless recognizes the universal equal moral worth of each
individual. After all, there can be no question of how culturally sensitive implementation of
human rights may or may not be without that initial consensus.
The equal moral worth of the individual, or universality, is one of three main tenets
of cosmopolitanism, according to Thomas Pogge (1992, 48). The other two are
These states were “Saudi Arabia, South Africa, and the Soviet Union together with four
East European states and a Soviet republic whose votes it controlled (Steiner, Alston and
Goodman 2007, 135)
5
22
individualism, the individual being the primary unit of concern and generality, the individual
being of equal concern to every other individual (Pogge 1992, 48). The UDHR is in line
with the first two of these tenets, but differs significantly on the third. Pogge distinguishes
between moral and legal cosmopolitanism, the former being the equal moral worth of every
individual, and the latter a “global order under which all persons have equivalent legal rights
and duties” (Pogge 1992, 49). Had it been possible to establish a human rights project that
held each person individually responsible for respecting the rights of every other individual,
perhaps the world would be, simply put, a better place.
Instead, as it was mentioned above, this moral agenda was enshrined in law, and UN
member states, by ratifying the ICCPR and ICESCR, agreed to “the obligation of States
under the Charter of the United Nations to promote universal respect for, and observance of,
human rights and freedoms” (1976). Due to the binding nature of these treaties, if states fail
to promote and observe human rights, they become the “principal violators” of human rights
(Donnelly 2003, 35). The UN human rights system was set up to monitor state compliance
with human rights treaty obligations. Since these treaties entered into force in 1976, the
world has seen a massive growth of international human rights law (Steiner, Alston and
Goodman 2007, 138). There are now six other international human rights treaties which
protect against racial discrimination, discrimination against women, torture and other cruel
or inhuman or degrading treatment or punishment, rights of the child, rights of migrant
workers and rights of persons with disabilities.
The legalization of human rights was, and continues to be, an essential step in
promoting rights observance and protection. The merit of having an extensive body of
international human rights law is that it acts as a tool to hold states accountable when they
fail to protect and ensure respect for human rights; where mankind is unable to agree on a
single universal moral code, “there is remarkable international legal consensus on human
rights” (Donnelly 2006, 68).
23
The Responsibility of National and International Communities to Secure and Protect
Human Rights
The challenge to the human rights project is that law itself may not amount to much
tangible human rights improvement. States are under no obligation to become party to
human rights treaties, and even when they opt to do so, they may ratify treaties only with
reservations. Once a treaty is ratified it may take years for a state to reform its national
laws. Moreover, if there is no political will to implement change, if it is not in the state’s
interest to either reform or observe the law, it is left to the human rights bodies of the United
Nations (UN) and to other national human rights institutions (NHRIs), local and
international non-governmental organizations (NGOs) like Amnesty International (AI) and
Human Rights Watch (HRW) for example, to monitor states’ activities and demand
compliance.
The UN system is often heralded as the world’s leading human rights body with its
extensive and developed mechanisms in place to monitor states’ compliance with human
rights obligations under international human rights law. The system is divided into two
bodies: a) charter-based, which include the newly established Human Rights Council, the
Universal Periodic Review, and Special Procedures and b) treaty-based, which is comprised
of the committees established to monitor implementation and observance of international
treaties. Additionally, the Office of the High Commissioner for Human Rights (OHCHR)
was set up to support the work of the UN human rights system, as well as to mainstream
human rights into the UN as a whole.
The international legalization of human rights has meant the possibility of victims of
human rights turning to both non-governmental and supra-governmental bodies to ensure
that states are doing all they must to protect and promote human rights (Freeman 2002, 155).
While the state remains legally responsible for ensuring human rights, if it fails to do so, or
24
worse, where the state itself perpetrates gross human rights violations, individuals look to
local human rights groups and defenders, as well as to human rights bodies beyond the state,
for protection. Where no violations occur, there is no need for globalization, but where
there are violations, the conditions brought about by a globalized world mean an ability to
respond instantaneously: global technology (i.e. internet, skype, television, radio) to
facilitate immediate communication and documentation of the human rights violation;
global finance to mobilize money and move it quickly from one corner of the earth to the
other; “open borders” so that in the case of a humanitarian crisis, aid workers and human
rights researchers and monitors can be on the ground as quickly as possible.
The ability of local human rights groups to protect and promote human rights is also
significantly increased by aspects of globalization. Local NGOs are able to compete for
funding from sources outside their state; in many places this means the difference between
an existent and non-existent civil society. Local NGOs often benefit from human rights
trainings, conferences, seminars and round-tables hosted by more developed civil society
outside their countries. As it was mentioned above, the UDHR calls for human rights
promotion through teaching and education; such meetings between different human rights
NGOs are an excellent way to promote greater understanding of human rights and to
disseminate information to countries where there are less human rights resources. These
gatherings are also a forum for different human rights groups to discuss the differences and
similarities of the human rights situations in their respective countries. This is globalization
in action, albeit a very ideal and optimistic globalization – the coming together of very
different people only to realize that across the cultural divides of language, religion, gender
and so on, they share a common commitment to fighting against human rights abuse.
International and local NGOs need each other to effectively promote human rights.
In places like Uzbekistan and Turkmenistan it is very difficult for international NGOs to
access firsthand reliable and verified information. Local NGOs in these countries, on the
25
other hand, because of extremely tight government control over the media, often have little
opportunity to publicize information about ongoing human rights abuse. Cooperation
between these two types of human rights bodies is made possible through structures in place
brought about by globalization. Human rights protection and promotion is most effective
when there is real interconnectedness amongst human rights bodies.
The Effective Recognition and Observance of Universal Human Rights
The contemporary primary means of protecting and promoting human rights is
through international human rights law, but as it was mentioned already, there is a
significant gap between human rights de jure and human rights de facto. Freeman identifies
two reasons why the law fails to protect rights de facto – a) the law is too remote from the
“’subjective experiences’ of victims of human-rights violations” and too inaccessible to the
very people it is intended to protect and b) the law is not sufficient to protect rights on its
own, and may in fact conceal human rights violations (2006, 62). These reasons correspond
respectively to the two problems laid out in the introduction - a) the dual agenda of the
human rights project which seeks to promote the equal worth of every individual, but do it
through law, and b) the fact that even when states have committed themselves to the
jurisdiction of international human rights law, enforcement mechanisms in place are too
weak to ensure compliance. The situation of widespread torture in Uzbekistan is a good
example of the discrepancy between rights in principle and rights in practice. For Uzbek
victims of torture, the Convention Against Torture (CAT), which Uzbekistan acceded to in
1995, means very little. The allegations of torture resounding in courtrooms almost never
lead to further investigation and re-trial (HRW 2007, 2), and most of the individuals who are
ill-treated in custody have no idea what a convention is. In contexts like these, while
international human rights law exists, it does not bring justice to the victims of subjective,
but real, experiences of a grave form of human rights abuse.
26
The issue of rights enforcement, or observing obligations to respect human rights,
like the aforementioned right not to be tortured, is highly problematic. While the UN human
rights system has been successful in creating human rights norms, when it comes to
enforcement, it has to constantly negotiate a balance between respecting the sovereignty of
each member state and its commitment to universal human rights (Steiner, Alston and
Goodman 2007, 735). International human rights courts like the European Court of Human
Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) take
enforcement to a level beyond that of UN treaty monitoring, and the jurisprudence of these
courts advances the human rights project by setting new human rights norms. However,
while some states respect the jurisdiction of these courts and fully implement decisions at a
national level, some states, like Russia, do not (HRW 2008, 7). Local and international
NGOs act as whistleblowers on these rogue states, but to achieve effective recognition of
universal human rights, there need to be much better enforcement mechanisms in place.
Human rights are inseparable from the political and legal systems of the world. The
claim that “human rights are the rights human beings have simply because they are human
beings” (Freeman 2003, 49) would not help victims of human rights violations anymore than
unenforced human rights law. A right is not fundamental because it is what an individual
has on an island all by himself, awash with goods. A right is fundamental insofar as it is a
necessary condition to participate in the world, which means, in short, within the confines of
the legal and political systems that have been created as well.
Effectively promoting and protecting human rights is a question of finding balance
between the moral and legal agendas of the human rights project. If the human rights
project is, as I am arguing, more importantly about securing the individual’s equal moral
worth than simply demanding a state’s minimal compliance with human rights law, then not
only must the state commit to respecting the legal rights of the individual, but as Pogge has
27
argued, each individual must also commit to respecting every other individual’s rights
(1992, 49).
The moral agenda of the human rights project is to promote the concept that all peoples are
of equal moral worth. Douzinas states this idea quite succinctly: “If there is something
“universal” in the discourse of human rights…this could perhaps be the recognition of the
absolute uniqueness of the other person and of my moral duty to save and protect her”
(Douzinas 2000, 348).
In conclusion, I return to the two ways the UDHR defines rights promotion and
protection: 1) teaching and education of rights and 2) progressive measures, such as
international human rights law, to secure rights. While there are some significant efforts to
inform people of their rights worldwide (i.e. progressive programs by the regional human
rights bodies in the EU), far too often this education takes place only after the fact, once
individuals already have suffered some violation of their rights. If more resources were
directed towards informing individuals of their human rights and the structure of the
international legal system before a human rights violation ever occurs, perhaps less human
rights abuse would happen overall. This is an idealistic claim to be sure, but no more so
than the lofty agenda the human rights project has set out to achieve in the first place.
A majority of governments have already committed to the moral agenda of
protecting and promoting human rights by ratifying the main human rights treaties 6. Now
they, as well as the UN and NGOs, would do well to both re-evaluate their main focus and
allocation of resources from attempting to achieve minimal legal compliance with human
rights standards to rights promotion through training, education and proactively spreading
information about the human rights concept to all peoples in the world, and develop and
create improved rights enforcement mechanisms that would oblige states “to address the
6
As of January 2007, for instance, 160 states are parties to the ICCPR (Steiner, Alston and
Goodman 2007, 844)
28
underlying causes of abuse” (HRW 2008, 7). The human rights project could maximize on
the positive aspects of globalization more effectively by utilizing technology, transport, etc.,
to advance the UDHR’s agenda for a universal consensus on the equal worth of each and
every human being.
Conclusion
Human rights achieved both moral and legal significance in the Universal
Declaration of Human Rights. The equal worth of individuals was enshrined in the legally
binding human rights treaties that stemmed from the UDHR, and all states party to these
treaties have been commissioned to protect and promote universal human rights. The global
community has yet to achieve either effective rights promotion and protection or universal
realization of each person’s equal worth, which are, to be fair, no easy feats. The
codification of human rights into law was an essential step towards achieving the aims of the
human rights project, but to be effective, more resources need to be put into rights
enforcement and the moral agenda of the human rights project must again be brought to the
forefront of the project’s efforts. Through teaching and education, promoting respect for the
individual, regardless of the seemingly vast differences between people, would, I propose,
do more to tackle the underlying causes of human rights abuse – intolerance, hatred,
xenophobia, for example, than pushing for compliance with minimum standards.
The processes of globalization are essential for bridging the vast differences and
distances between people. Having defined globalization as a set of processes that bring
about greater global interdependence, the human rights project, which seeks to establish a
global moral order protected by international human rights law, assumes its rightful place in
line with the global processes more commonly associated with globalization.
29
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30
Discuss the view that the principle of national sovereignty is ultimately
incompatible with the defence of human rights
'We confront a real dilemma. Few would disagree that both the defence of humanity and the defence
of sovereignty are principles that must be supported. Alas, that does not tell us which principle
should prevail when they are in conflict.' Kofi Annan (2000a: 48)
Introduction
Since the end of the Cold War, there has been a change in the way the international
community treats state sovereignty and the respect for human rights. Progress has been
made concerning the respect of human rights worldwide, dictators and other human rights
violators from various countries have experienced that state sovereignty not necessarily
always protect them anymore: The ruling of the British House of Lords in 1998 that
sovereign immunity does not protect former Heads of State, such as Pinochet, of being
prosecuted for alleged torture, NATO's bombing of Yugoslavia to stop ethnic cleansing in
Kosovo in 19997 and the establishment of the International Criminal Court with jurisdiction
from July 2002 are all examples proving that there are limits to the human rights violations
parts of the international community is willing to accept in the name of state sovereignty
(Robertson 2006). There are, however, also examples of the contrary: Not all conflicts get
the same attention and some states are conducting gross and systematic human rights
violations against their own population without interference. The Burmese military junta's
ethnic cleansing of Karen people is one example, Russia's violations in Chechnya, China's
treatment of Tibet and the 1994 genocide in Rwanda others. As the quote in the beginning of
the paper shows, the difficulties that the international community faces when the two
principles of state sovereignty and human rights conflict, is debated and the reactions from
the international community are not consistent, neither historically nor geographically.
Since the Peace Treaty of Westphalia in 1648, the state has been, and still is, the
strongest unit in the international community. The state is the sole legal personality within
international law and the only entity that can enter into treaties. The responsibility to protect
human rights lies upon the state. But in reality, states are the main violators of human rights,
the ones responsible for their people being deprived of education, lacking access to clean
7
NATO bombed without having a mandate from the UN Security Council, and both
the motives behind and the results are disputed. This is, however, still an examples of a
breach of state sovereignty made in the name of human rights and is therefore included here
without the intention of discrediting the other examples mentioned.
31
water and for women being raped as a weapon in war-times. Countries like Burma,
Zimbabwe and North Korea are notorious violators of human rights, yet the respect for state
sovereignty is one of the aspects making a high threshold for external interference. Freeman
is one among many concluding that 'the principle and practice of state sovereignty are,
therefore, strong barriers to the implementation of international human-rights standards'
(2002: 132).
To try to shed some light on the question of whether state sovereignty and the
protection of human rights are incompatible or not, this paper will start by defining the role
of state sovereignty and the growing interest in human rights. As theories can be used as
tools to discuss reality, this paper will introduce realism and cosmopolitanism to understand
and discuss the question raised. Cosmopolitanism is primarily introduced to set the context
for Müllerson's ideas, while realism is the main theory of international relations and should
therefore be of utmost interest to anyone discussing international policy (Dunne and
Schmidt 2008: 95). This paper understands both cosmopolitanism and realism to find state
sovereignty incompatible with the protection of human rights, but their reasoning and
suggestions for solutions are very different. While a cosmopolitan is inclined to supersede
state sovereignty to protect people all over the world equally (Pogge 1992), realism would
ultimately be willing to sacrifice human rights of the people in other states on the altar of
state sovereignty (Morgenthau 1993: 248-249). As cosmopolitanism, Müllerson also
believes in universal morality and human rights. But he is quite pragmatic, believing that
state sovereignty will continue to be a strong force into forceable future (Fagan 2008). His
theory of human rights diplomacy (1997) will therefore be used as an attempt to bring parts
of cosmopolitanism and realism closer. By arguing that poor human rights standards in a
state can have serious and widespread effects on international security and stability,
Müllerson can be read as indirectly discussing how the human rights situation in other
countries hence should be of the utmost interest also for realists. Due to shortage of space
the paper will not discuss humanitarian intervention in-depth or go strongly into the
discussion on the Responsibility to Protect doctrine, but only briefly touch upon it when
relevant. It is a topic that deserves a more thorough discussion that what this paper can offer.
Throughout the paper, the theories and ideas will be compared to actual situations in
the world today to illustrate how the international community acts as of the last years8 and
compare this to realism and Müllerson's human rights diplomacy.
8
Single-case examples can only be just that: Particular situations that show a certain
part of the international political discussions or situations at a specific time and place and in
32
State sovereignty and human rights
The basic unit in international relations is the state as reflected in international law and
reiterated in the UN Charter from 1945. The ideas of state sovereignty and non-interference
in other states' domestic affairs are crucial. Article 2(4) of the Charter clearly states the
importance of non-interference in other states: 'All members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the purposes of
the United Nations.' The Charter emphasises in article 2(7) the importance of sovereignty:
'Nothing contained in the present Charter shall authorise the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter (...).'
Since the atrocities committed during Second World War, another principle has
become increasingly important in international relations: human rights. Anticipating the
Universal Declaration of Human Rights, the UN Charter refers to the protection of human
rights several times, most clearly articulated in article 55(c): 'universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race,
sex, language, or religion.' Three years later, the Universal Declaration itself was agreed
upon, the first document that set aside the centuries-long discussion of where human rights
came from and simply declares that all individuals are entitled to certain rights.
There is an inherent dichotomy between state sovereignty and the respect for human
rights, in the sense that while state sovereignty is on a horizontal level, where all are equally
sovereign, the protection of human rights is necessarily vertical; there must be someone
protecting and promoting the rights of all human beings. Through international human rights
treaties and the establishment of various international criminal courts (both the ad hoc ones
and the permanent), most states have agreed to entrust parts of their sovereignty to a variety
of international bodies under specific pretexts. Some argue that certain civil and political
rights have become international customary law and it does not therefore matter if the state
has ratified any convention, it still has to comply with those duties involved (Müllerson
1997: 2). However, with those customary laws as an exception, a state can revoke its
decision of being part of a treaty or court at any time. The vital question is, if the state is
themselves not give a complete overview over the international realm. But even so,
examples might help clarifying and be a way of showing the difficulty and unwillingness in
some cases, and overeagerness in other cases, that the international community has when
using human rights as a reason for its actions or lack of such.
33
unable, or unwilling, to provide its people with fundamental rights, who has then the
responsibility for protecting the victims? The evolution of most conflicts, from international
to intra-state, (International Commission on Intervention and State Sovereignty 2001: 13),
makes this question highly relevant. Then UN Secretary-General, Kofi Annan, suggests that
the UN Security Council might act on behalf of the world community (2000b). The role of
the UN Security Council, as drawn up in chapter VII, article 39 of the Charter, is quite clear:
'The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall
be taken (…) to maintain or restore international peace and security.' The definition of a
threat has changed throughout the history of the UN, and particularly the end of the Cold
War, made both far-reaching changes in the concept of what can be seen as a threat, and the
frequency of resolutions voted over by the Council. As will be discussed later in this paper,
internal human rights violations and instability are, under various circumstances, considered
a threat to international peace and security.
Realism and cosmopolitanism
Realism's fundamental claim is that a state will always think first and foremost about
survival and therefore its own national security (Mearsheimer, 1994-1995: 10).
Humanitarian interventions and other kinds of interference in the internal affairs of other
states should consequently only be a solution when your own state can gain from it. The two
realists Mearsheimer and Walt made this argument very clearly in the discussions leading up
to the invasion of Iraq in 2003, believing it was not in the US' best security interest to start a
war against Saddam Hussein (2003). For a realist, the nation state is the primary unit in
international relations, and the value of sovereignty of the state over its decisions, territory
and people should always be respected. Realism believes in the need for collaboration
among states to try to solve global problems, such as environmental issues, but only on a
voluntary basis that does not extend to breaching national sovereignty (Waltz, 1979: 210).
Morgenthau, one of the most prominent realist, believes a political realist will place the
interest of the state before all other interests in international relations (1993: 13).
Furthermore, realism does not recognise universal moral values, but that does not
mean, however, that realists are amoral or do not acknowledge the existence of morality.
Morgenthau examines international moralism thoroughly, and claims that there is no longer
an international moralism understood by all states to mean the same, but that nation states
have their own moralism that they often believe to be, or acts as if it is, universal (1993:
34
224-249). Morgenthau finds human rights to be of moral character. Issues of moral quality
can, but does not necessarily have to, be part of a countries foreign relations policy. Pointing
out that there are limits to what politicians and diplomats are willing to be part of that fall
short of a pure national interest, he explains this with moral boundaries (1993: 225).
However, this will vary from situation to situation, and human rights do not prevail over
other more pressing concerns of vital interest to the power and security of the state (1993:
248). How power is gained is not of relevance to a realist (Mearsheimer 1994-1995: 48), and
a state does not have moral responsibility for the protection of human rights within the
borders of another independent state (Morgenthau 1993: 248-249).
Nationalist David Miller might be seen as among those supporting realism in this
claim, even if his concern are individuals in nations (not necessarily states) believing that
every person only have moral obligations to its fellow citizens of the same nation (1995:
49). Cosmopolitanism theory, on the other hand, would strongly oppose this notion,
promoting a universal community. The individual is the primary unit; all human beings are
of equal moral standing, there is no collective unit that can have a moral standard in itself.
This understanding of equal human worth should be applied universally, without religious,
geographical or other distinctions, and generally, without considerations as to whether this
person is connected to you or not (Pogge, 1992: 48-49). Pogge distinguishes between legal
and moral cosmopolitanism and is primarily concerned with the latter term. He argues the
case of individual freedom for everyone. The only possible way he sees for that to be
realised, is an institutionalist strategy where sovereignty is divided vertically among various
institutions on different levels (like affiliation to an organisation, city or neighbourhood), not
horizontal as in state sovereignty (1992: 50-75).
Protecting both state and human rights: A bridging exercise
Müllerson supports the fundamental idea of cosmopolitanism, as he embraces the idea of
universally application of human rights (1997: 11-13). At the same time his work is quite
pragmatic regarding state sovereignty. He suggest a long-term work where the hegemonic
power of the state is slowly adjourned and empower local and regional bodies (Fagan 2008).
Müllerson believes it is better to save some than none, and that idealistic thoughts
need to be combined with a practical mind and clear ideas about how to implement the
ideals in the real world (1997: 3-4). One might read his work on human rights diplomacy as
a subtle critique of his fellow idealistic defenders of human rights, as being out of touch
with reality, while he at the same time commends their efforts and stress the importance of
35
improving the human rights situation. Furthermore, he emphasises that people working with
human rights need to realise that to reach some of the goals, there must be room for
compromise: 'constant efforts towards their resolution in everyday practice, often through
compromises, is the way in which human rights issues in international relations should be
dealt with' (Müllerson, 1997: 3, emphasis added).
Müllerson finds human rights violations to fall into two categories: Individual
violations due to institutional imperfection, but where the state recognises the value of
human rights and systematic abuses by states that do not embrace the concept of human
rights (1997: 9-10). The former is more easily resolved either domestically or
internationally. It is the latter, where the state has no intention of finding a solution in
accordance with human rights treaties, that can possibly create instability and consequently
pose a threat to international security and therefore be of most interest to the discussion here.
Müllerson sees the need for every state to have a human rights diplomacy as part of
their foreign policy, he even argues that most states cannot afford not having it because
human rights are on the agenda in such diverse international fora as NATO, EU, IMF and
various bodies within the UN. Diplomacy is in dictionary terms defined as '1: the art and
practice of conducting negotiations between nations 2: skill in handling affairs without
arousing hostility' (Merriam-Webster Dictionary 2008), which is emphasising the preventive
efforts. The same can be said for human rights diplomacy. The aim of human rights
diplomacy would be to prevent violations of human rights (Müllerson, 1997: 179), but in
those cases where violations already occur, to try to influence a state to take action to
improve the situation.
It might be valuable to differentiate between agreeing on the importance of human
rights on the international area, and making it a vital part of its own bilateral relations with
other states. It is not solely about having a diplomacy, Müllerson argues, but how active it is.
Some states would have a passive or even negative approach, while others would be more
active and promote human rights and discuss violations and lack of protection with the state
concerned (1997: 2-6). For human rights to be accepted as important to deal with for a
political realist, there seems to be a need to argue beyond the grounds of moralism and relate
more to their home field: Security and power. As George Marshall, US Secretary of State,
said in 1948: 'Governments which systematically disregard the rights of their own people are
not likely to respect the rights of other nations and other people and are likely to seek their
objectives by coercion and force' (in Müllerson, 1997: 21). As already mentioned in the
introduction, one way of reading Müllerson can be that hat he tries to bridge the gap
36
between realism and the protection of human rights. His claims it is in the interest of state
security to care about human rights violations in other countries because internal oppression
within a state might lead to international insecurity (1997: 23-31). By using the tools of a
human rights diplomacy, a realist would protect her own country's future security.
Human rights as a threat to international peace and security
The institutional set-up of the UN Security Council seems to work in line with Müllerson's
and Marshall's argument. However, it is very well known how the Security Council, with its
five veto powers, will not be able to interfere in the state of affairs of any of the countries in
the interest sphere of China, Russia, France, the UK or the US (Freeman, 2002: 133). The
previously mentioned NATO intervention in Kosovo is an example of this, where the UN
Security Council could not agree on a humanitarian intervention (Foley 2008: 161). Before
the US-led invasion of Iraq (2003) the majority of the Security Council disapproved of the
grounds for military intervention (Foley 2008: 161). The examples of the opposite, where
nothing has happened after it is made clear that the Council will not act, are numerous. Still,
it is interesting to read the reasoning behind some of the latter resolutions on what can be a
threat to international peace and security. Müllerson's claim that domestic instability due to
among other factors human rights abuses, will lead to international insecurity, has repeatedly
been supported by the Security Council. Since the end of the Cold War, human rights have
been among those factors resulting in various kinds of UN Security Council intervention in
several countries, for instance: Liberia9, Rwanda10, Haiti11, Yemen12, Afghanistan13 and
Sierra Leone14 (Havel and Tutu 2005: 45). In addition, overthrow of democratic
government, conflict among factions, refugee outflow, drug trafficking and HIV/AIDS have
been considered threats to international peace and security (Havel and Tutu 2005: 45). Most,
if not all, of them can arguable be led back to breaches of human rights. Again, there are
also examples of other situations that, even with all the same factors as the mentioned
countries, did not secure a UN Security Council resolution. One of the recent examples is
Burma, where a US-sponsored resolution calling for the release of all political prisoners and
criticising the country's human rights record failed to get support from the Council in
January 2007. In the work towards the resolution, the case was made that Burma had all the
9
10
11
12
13
14
1992, SC resolution 788
1993, SC resolution 812
1993, SC resolution 841
1994, SC resolution 924
1996, SC resolution 1076
1997, SC resolution 1132
37
above mentioned factors that can lead to a threat on international peace and security (Havel
and Tutu 2005: 50-58). Referring to state sovereignty and non-interference in internal affairs
of a Member state, China and Russia vetoed the draft. There were also European and
American diplomats that were worried that pushing a resolution would make their
relationships with China worse (Lynch 2007). This is one of the examples of the strong
grounds realism still holds in international relations and that the support for state
sovereignty might function as a shield against the protection of human rights.
Norway as a case
The reasoning for choosing an active human rights policy vary. It might be pressure from an
active civil society and the media, or the state wanting to divert attention away from
problems at home or supporting political allies. Müllerson argues that states understanding
the role of human rights in stabilising other countries would be the most active in the human
rights diplomacy. But there can also be argued for other reasons. The various theories in
realist school differ in their views on whether states aim to maximise their relative power or
if they are most concerned with upholding the existing balance of power (Mearsheimer,
1994-1995: 11). Either approach would, according to Müllerson's theory, benefit from
attention to the instability caused by human rights violations in other countries.
Norway is one of the countries one could argue is using human rights as a way of
expanding its relatively small power. With a small population in the outskirts of Europe, the
country has chosen to use it comparative advantage of being one of the richest countries in
the world to pay its way to international recognition and power through development aid,
humanitarian and human rights work (Haugsvær, 2003: 4). This way of using its own power
can be seen in various ways, one as supporting Müllerson's attempts to promote human
rights dialogue, arguing that it is in Norway's security interest as a small country relying on
its NATO-allies for military support to see stability in the world. Others might resent this
view and argue that Norway's foreign policy is a pragmatic cosmopolitan way of thinking,
where all have a moral responsibility to protect the human rights of other people. The
examples thus incline that cosmopolitanism and realism intentions in some instances might
have the same practical outcome.
Conclusion: From shield to protection?
As seen in this paper, human rights have been mainstreamed into international politics since
the Cold War (Müllerson 1997). The use of human rights as a justification for breaching
38
state sovereignty through humanitarian interventions in some extreme situations might show
the sceptic that human rights are here to stay, and that every state needs to evaluate its
internal and international relations in regard to human rights. It might as well argue, like a
realist would, that it only happens when it is in the self-interest of the states involved and
that the interventions therefore do not bear a moral value.
Realism and Müllerson's human rights diplomacy are not completely opposite ideas.
One might argue that Müllerson takes realism a step further by introducing human rights as
a security concern, and therefore making it other state's business whether a regime is
violating its populations human rights or not. It might be to stretch it too far to categorise
Müllerson himself as part of a new generation of realists, but he is certainly making it harder
for realists to dismiss human rights. Müllerson defines himself as a cosmopolitan, and this
paper has therefore also showed how he has tried to bridge the gap between realism and
cosmopolitanism, and other human rights defenders, by widening the scope of security.
The increasing inter-dependence between states in the post Cold War era makes
countries more vulnerable to the internal affairs in other countries (Müllerson 1997: 180181). This paper has shown that Müllerson's argument has been supported by the many
resolutions from the UN Security Council telling the same story - that internal instability can
create international insecurity and therefore affect your own country’s national interest and
security. But even if the violation of human rights as an international security risk argument
is accepted, it still has a lot of weaknesses. One of them is its practical application. There is
no consistency in the way countries violating human rights are treated. And where the
situation of human rights is not bad enough to risk international insecurity, there is not much
hope to get the realists involved as human rights defender. It still boils down to the role of
the country, the strategic interests of the powerful countries in the world, especially on the
UN Security Council, previous experiences and internal issues in the deciding countries.
So even if Müllerson's widened scope of security is accepted by realists, the respect
for state sovereignty is still of high importance in international relations and it still normally
prevails over human rights when one of the two principles have to step aside.
39
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