The proposals though do have an effect on world public opinion (the consensus as to what constitutes legitimate moral, legal or social behaviour,) and the standard that they set is used as a yardstick to measure and beat states which consistently fail to comply. Rhodesia and South Africa, the Soviet Union and China have borne this brunt most often recently.
International Law refers to the system of rules that are regarded as binding on states and other agents in their mutual relations. Despite the hopes of idealists, it has not been sufficient to completely solve the problems of human rights abuses through ‘peace-through-law,’ and so as Austin (1832) says, it is little more than a ‘positive morality’. International Law has been restricted in its use for promoting human rights norms because the international system is characterised by the absence of a legislature, judiciary and executive meaning it is arguable that there therefore cannot be legal order.
However, it is naturally adapting in a way which is consistent with the promotion of human rights. It appears to be moving away from being premised on a system of sovereign states towards the development of a common law for a world community of individuals. This process is continuing, most notably with recent multilateral declarations and conventions on human rights.
Although since the end of the Cold War, there has been a greater movement, on the whole, towards the acceptance of human rights as an integral part of world politics, there is a great deal of debate as to where the emphasis should be placed. In the West, the rights of individuals to be free from the interference of others are paramount, whereas in the East, economic and social rights have taken precedence over civil and political rights.
Underlying the sources of International Law is the principle of reciprocity which is the notion that it is in the mutual interests of all states to follow established conventions. However, the reciprocity of economic relations has all too often taken precedence over the target of human rights norms reciprocity. For example, with exception of the US within a couple of years of sanctions being implemented against the Former Yugoslavia, they were then removed as the priority of overcoming human rights abuses was overridden by economic considerations. This has been seen a lot in China too where access to its exports and home market is regarded as more important on balance that human rights issues.
Although International Law appears to be moving to world law, it is important to note that in the absence of a supranational enforcement agency, coupled with the continued insistence on state sovereignty and states’ rights, means that a radical revision of the basis of International Law is unlikely in the near future. As a result the extent to which it seeks to promote human rights will not be improved upon.
International morality is becoming more prominent i.e. international relations is being conducted more and more on the basis of certain shared ethical values, assumptions and norms which are not necessarily embodies in International Law. For Realists e.g. Morgenthau, the pursuit of the balance of power takes priority over the pursuit of human rights. Idealists and universalists though hold that human beings have moral obligations to each other and then so too must states, which are after all social collectivities. This view, which is being adopted more and more following the collapse of the Soviet Union, identifies ‘absolute values’ e.g. the promotion of human rights. Underlying this is a belief is the idea of a common humanity which brings with it a common set of rights, duties and obligations.
There is not however a consensus on this Wilsonian view. Many think that there is not a great consensus on human rights and that this is excusable due to cultural relativism. Radical relativism concedes cultures and history as the source of all values and so denies the very idea of human rights, for it argues that there are no rights that all are entitled to simply for being human beings. Social anthropology supports this whereby it says that humanity is constantly evolving and changing social relations overturns appeals to human nature as the ‘clinching argument’. Booth rejects the exclusivity of cultures too because it privileges traditional values at the expense of emancipatory ones (Dunne, Wheeler, 2000).
Opposing this extreme is the extreme of radical universalism which says that human rights are entirely universal and are in no way subject to modifications in the light of cultural differences. This is backed up by the “Presentism” thesis.
Totalitarian regimes over the past couple of decades have dissolved to the advantage of democratically elected ones. In Asia, the dictatorship of Marcos was overthrown in the Philippines in 1986 and an elected government in 1988 replaced South Korea’s military dictatorship, the same year during which Pakistan’s Bhutto was elected Prime Minister. The progress of the 1980s in Latin America, Central and Eastern Europe has for the most part been upheld. In El Salvador and Hungary, liberalisation has substantially deepened. In Sub-Saharan Africa, relatively open multiparty elections are becoming common.
However, Nigeria remains under military rule and repression continues in Mauritania. Most African countries are still systematically infringing on a number of internationally recognised civil and political rights. In practise therefore, consensus on human rights is not so great as they are in theory.
This is firstly because many who drafted and signed the ‘international bill of rights’ have defaulted on their normative commitments. This is backed up by the 1997 findings of Amnesty International who said that 123 out of the 185 sovereign states practise torture. This was graphically illustrated by the case of Rwanda, 1994.
Confusion often arises in texts whereby they confuse decreased tolerance for old forms of repressive rule with support for protective regimes and in extreme cases the institutionalisation of rights. Liberalisation is the process which involves reduced human rights violations and progress in civil and political rights. However, it is often assumed that a more towards a more democratically elected government goes hand-in-hand with improved human rights records. However, democracy and human rights have very different and often competing theoretical and moral foundations. Democracy is a fundamentally collectivist political theory concerned with the common good, whereas human rights rests on an individualistic political theory which refers to individuals’ guarantees.
The two types of democracy are procedural and substantive. Donnelly says that Americans in particular are inclined to think of democracy in procedural terms. They thus assume that fair and open elections produce governments that engage in the popular will and interest and thus as a result follow human rights norms more stringently. However, this ignores substantive results. In Latin America for example, the elected ‘democratic’ governments in practice defend the security and welfare of a minority. A government which is procedurally democratic alone thus may well still systematically violate human rights which the Amnesty International findings support.
Democracy’s drawbacks, particularly the disadvantage that it may fall short of the demands of internationally recognised human rights, has often been overlooked in international human rights discussions, particularly in the US. The false conclusion that human rights consensus in practice is much better than it actually is, is as a result of the failure to distinguish between elected democracy and the liberal democratic welfare state. In this latter type of polity, the state is seen as an institution to create the conditions needed to realise the rights of its citizens. Here political authority arises from the sovereignty of the people, and economic and social rights extend well beyond the right to property (Donnelly, 1997).
Even well intentioned and well-designed International human rights face massive national and international obstacles. Human rights, for example, are only one part of foreign policy. In some circumstances, other policy objectives may require or justify cooperating with a repressive regime.
There is also not a consensus on human rights to such a great degree, in addition to states’ failure to live up to universal standards of human rights, because political communities are actually interpreting universal human rights differently. This creates a disparity between theory and practice. This begs the questions: what is the standard? (E. H. Carr) and can human rights practices exist without presupposing an essential human nature? This latter question relates again to (a lack of?) cultural relativism. What is thought by all genuinely universal approached in the international society is consistent with the Liberal Natural Rights Theory. This says that individuals have certain kinds of rights via belonging to a particular community, but that human rights belong to humanity and do not depend for their being on the legal and moral practices of different communities. R. J. Vincent agrees with this and argues, being a contemporary liberal universalist, that human rights and inalienable.
International human rights pressures can lead to changes in human rights practices, helping to transform understandings about the nature of a state’s sovereign authority over its citizens. Although there is the growing legal and moral recognition of human rights on a worldwide scale, while the governments of the world today speak a common language with regard to human rights, and while there is a wide area of agreement on what are sometimes called ‘basic human rights’, the emphasis of the Western countries on the rights of individual persons against the state contrasts greatly with e.g. the emphasis placed by LDC countries’ governments on collective rights.
Kirk and Sikkink identify the absence of domestic human rights NGOs as the determinant of the extent of the growth rate on the consensus on human rights. They note that failures of International Human Rights networks to be effective have been in these circumstances in e.g. Guatemala in the 1970s and 1980s and Colombia where there have been endemic abuses in the 1990s.
