After the Second World War, and especially since the 1980s, human rights have spread to almost all aspects of international law. Human rights have brought transformative changes to another key feature of international law: the doctrine of resources. Finally, this article discusses the costs of human rights to international law as a whole.
INTERNATIONAL HUMAN RIGHTS: COSTS TO PEACE AND
Despite its widespread presence and many successes, international human rights law is under increasing attack. ROBERTS, THE CONTENTIOUS HISTORY OF THE INTERNATIONAL HUMAN RIGHTS FACTOR 9 (2015); SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY. 20 l 6/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum [https://perma.cc/FXK2-GV4X];.
Doctrinal Innovations and Their Costs
Immunity
- Universal Jurisdiction
- Right to Democracy
- Remedial Secession
- Humanitarian Intervention & Responsibility to Protect
- Conclusion
Costs to the "Territorial Peace"
Political scientists offer another way to consider the costs of human rights-related doctrinal innovations in international law. 34;territorial peace.” Some of the doctrines described above undermine the ways in which international law tends to generate territorial security. International law rules intended to reduce conflicts over territory and boundaries include: UN Article 2(4)
167 The conclusion of the Kellogg-Briand Pact in 1928 probably accelerated the decline of conquests;168 in any case, the prohibition of the use of force for territorial conquest was strengthened in the UN. Reorienting the international legal system toward individual human rights and away from state sovereignty threatens to undermine all three of these doctrines. As described above, humanitarian intervention, the responsibility to protect, the right to democracy and the right to violent secession undermine UN Article 2(4).
Goemans, The Making of the Territorial Order: New Borders and the Emergence of Interstate Conflict, 65 INT'L ORO. Consider Kosovo - one of the most important examples in the arguments that sovereignty and international law have been reconceptualized. Its purpose was instead to prevent mass atrocities and human rights violations.174 Territorial acquisition was also not the direct effect of the intervention: NATO countries did not claim the territory of Kosovo for themselves.
Note that there are many potential reasons for the decline in armed conflict in the post-World War II period and before, many of which are not closely linked to international law.176 Nevertheless, the strength of the association between territorial disputes and war in The empirical literature shows that if international law can reduce – or contribute to reducing – conflicts over territory, it will contribute to a reduction of armed conflict, regardless of the combination of factors that have contributed to peace in the past or who can do that. so in the future.
The United Nations and Polarization Costs
Human Rights Council
- UN Treaty Bodies
Conclusion
After all, states remain bound by substantive human rights treaties and the customary international law that protects human rights. In a few years, international human rights enforcement may be back on the upswing. But several factors suggest that the decline is longer-lasting, including the relative decline in Western economic and political power, broader global trends toward populism, and the selective and half-hearted efforts of Western countries to promote human rights through international law.
Human rights themselves may, let us hope, improve over time, and the drive and motivation to secure human rights will certainly continue, but neither means that international human rights law should or should be the preferred vehicle for it. A second potential objection is that there is no decline because there was no heyday: states never took international legal enforcement of human rights law seriously, even if activists did. Human rights have not only allegedly transformed sovereignty and the work of the United Nations; they also changed what international legal scholars call the "doctrine of sources" as part of what one scholar called the "expansion project" of international human rights law.224 The resulting changes to the two primary sources of international law—treaties and custom—successfully ensured that a wide range of human rights norms are legally protected by international law.
But this elasticity of the source doctrine has come at the cost of widespread non-compliance and under-compliance with international human rights law. This part considers whether greater lack of and under-compliance with human rights norms makes international law as a whole less credible and less effective. They, along with studies of social psychology and national law, all suggest that widespread non-compliance with human rights will make the rest of international law less effective and more expensive to enforce.
If this is correct, the decline of international human rights law may ultimately benefit international law as a whole, but only if international law does not continue to carry the burden of enforcing human rights as legally binding norms.
Expanded Sources
Treaties
- Custom
A "Broken Windows" Effect?
Rational Choice
- Constructivism
- Organizational Sociology
- Social Psychology
Expanded Mandate: Credibility and the United Nations
REFRAMING THE DEBATE: A POST-HUMAN RIGHTS AGENDA FOR
It suggests that international law and the United Nations should not double down on the crumbling architecture for the enforcement of human rights, but should instead focus on developing a strong core of sovereignty-protecting international legal norms, dedicated to the protection of international peace and cooperation. It would also reduce the cost of broken windows by relaxing the assertion that human rights should be enforced as binding international law and by focusing on a smaller set of more vigorously enforced standards. However, the benefits of such an approach depend in part on the unresolved debate over whether and how international law effectively promotes human rights.
Protecting the "Territorial Peace"
A second counterargument is that "democratic peace" suggests that in order to promote peace, international law must promote human rights. 334 If international human rights law makes countries more "democratic," as that term is defined in the empirical literature, it may promote interstate peace. A more difficult difficulty, however, is the tenuous relationship between human rights and "democracy" as defined in the democratic peace literature.
"Democracy" as defined by the democratic peace literature is not the same as a regime that respects human rights. Empirical measures of democracy used in the democratic peace literature are given in "Polity IV". Peace with "human rights" has not been tested as extensively as territorial or democratic peace.
However, there is an additional problem with the claim that international human rights law has helped create democratic peace or human rights peace. Even if human rights are related to peace between several state parties, the extent to which international human rights law generated or supported those human rights would be difficult to measure in most situations. Human rights protection is provided for in an overlapping set of regional human rights systems as well as domestic statutory and constitutional law, in addition to binding and non-binding international legal instruments.
The basis of that system—indeed a key basis for post-World War II international law—is the prohibition of the use of force against the territorial integrity of another state, which is not an issue meaningfully addressed by domestic law or by regional court systems. not be regulated. .
Refocusing the Work of the United Nations
Even if human rights are not enforced through international law, their enforcement through national legislation and in other ways can be improved by having them included in major human rights treaties. Therefore, this part proposes to leave the treaties in place, but to recognize that their obligations are soft, and to refocus the work of the UN away from human rights and their legal enforcement. The idea would be to capture the potential positive effects of iterative engagement with these bodies without the claim that each human rights obligation is a binding legal obligation.
345 Research suggests that the iterative process of reviewing and reporting on human rights before an international body improves human rights practice. 34;348 Exactly the same kinds of transformation are necessary to protect and promote human rights. The General Assembly and the Security Council could focus their attention on the many pressing issues beyond human rights—either their legal enforcement or their promotion more generally—to avoid credibility and polarization costs.
The result could be a more credible, less polarized United Nations, and more effective protection of human rights. Secretary General, In Larger Freedom: Towards Development, Security and Human Rights for All, ml 158-64, annex, r 8, U.N. The Obama administration's focus on removing Bashar al-Assad from power, in part because of his poor human rights record, led to conflict with Russia and hampered the Security Council's efforts to do so.
HUMAN RIGHTS WATCH: WORLD REPORT 2016, supra note 18, at 476; see Relations with Russia, supra note 175; Russia and China veto the UN Resolution against the Syrian regime, on note 146.
Human Rights: Is International Law Necessary?
CONCLUSION
International human rights law, despite its many historical achievements, is no longer in its golden age. But the benefits will only be fully realized if those who create and shape international law carefully consider the dangers and opportunities that decline presents. At the very least, scholars should not focus solely on the decades-old debate over international human rights law and human rights, but instead on international human rights law and international law as a system.
As this article has shown, empirical work and models from political science, social psychology, and sociology show that human rights have incurred costs to international law and international peace and security. Empirical work showing a strong link between territorial disputes and armed conflict is particularly important because the stakes involved are so high. Some aspects of the transformation of international human rights law have undermined international legal norms and institutions designed to limit such conflicts.
It is easy to think that large-scale interstate war is simply impossible under contemporary conditions, due to globalization, international economic ties, and the lethal weapons available. The same view was prominent a little more than a century ago, on the eve of the First World War.388 The extraordinary contribution that international law seems to have made to interstate peace may be the great success of international law of after World War II. Today it is worth preserving through strong and reliable international institutions such as the United Nations and through international legal norms, which are as strong and powerful as possible.
