5 February 2024
Welcome to the third session of the course on International Human Rights. This is a relatively new course, but the subject is relatively old. The United Nations Declaration on Human Rights was adopted in 1948 and the human rights regime has been developing since then.
The development of the regime, in general and in detail is what we will be going throughout the course.
In the United States Declaration of Independence, one of the sources for international human rights, states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Human Rights is what we call in international management, a regime.
The term regime is derived from international relations theory, as a response to the dominant model to explain international behavior, realism. Realism posits that the international system is the consequence of the actions of individual states that weigh their national interest and use their power to have achieve those interests. It is a good theory to explain conflict, but not as good to explain why states reach binding agreements. Here is a quick introduction.
The classic definition of a regime was given by Stephen Krasner is a seminal issue of the journal International Organization in 1983. He said a regime is
"an international regime is a set of principles -- explicit or implicit, norms, rules and decision-making procedures around which expectations of actors (States) converge in order to coordinate actors behaviour with respect to a concern to them all
Note the components here:
An international regime is an attempt to build an institutional structure of regulation without altering the basic institutional structure of the international system, based on State Sovereignty. Within that context, international public institutions have a unique character, to which we will return shortly.
The idea of regime theory was a response, ironically, not to the problem of creating a coordinated response to actor's behavior in the WMD field, but rather to explain what was happening in such agreements as the Law of the Sea and the environment. The realist model did not have a place for these kinds of agreements since arguably many of them were not in a narrow sense in the national interest of the most powerful States. It also came at a point when the neo-functionalists, scholars who saw an increasing amount of "supranationalism" in trade and the economy (e.g. the European Community) but where the main building blocks were still state sovereignty. Regime theory, in a Hegelian sense, was the synthesis between the realist thesis and the functionalist antithesis.
Regime theory went out of fashion by the end of the 1980's, replaced by new terms, like international political economy and "new institutionalism". The late Susan Strange's critique of regime theory in the 1983 volume of the academic journal International Organization, "Cave Hic Dragones!" was used by many as the definitive put-down. The problem with the concept is that it was difficult for theorists to apply in practice. While treaty-based regimes, like the Law of the Sea, could fit, most international agreements were more amorphous. There were some efforts to examine "trade regimes" like the automobile industry, but they were particularly elusive. Regime theory fell from favor.
Clearly the neo-conservatives in the United States government during the Reagan and Bush administrations were happy about that development. So would the Tea Party in the United States today, and possibly the US President elected in 2016.
But were they right?
One of the problems of all of the main IR theories, including regime theory, is that they do not have much of a place for international organizations. In the IR world, States perform their stately dances, but no one notices the orchestra. (In fact, there may be an assumption that the music is in the heads of the dancers, which would explain why IR is not like the Opernball in Vienna). As a scholar I missed almost all of the controversies that seem to inflame bodies like the International Studies Association and the APSA. I was working inside the United Nations Secretariat and regime theory resonated with me. It provided some very useful explanatory tools for our role. Let's elaborate:
Again, using Krasner's original definitions, the elements of a regime are the following:
To anyone who has participated, over a long period of time, in multilateral negotiations, this is exactly the order in which the negotiations proceed. You first have to have an agreement that a problem exists, its causal parameters and the need to resolve it through collective action ("rectitude"). You then have to define the normative parameters. Then you have to agree on rules and finally you have to set up institutions that will enable collective choices. A regime is not really complete until all four stages have been agreed, although things can begin to happen after stage two.
A complicating factor is that sometimes regimes overlap and often this overlapping makes the agreement process complex. In international negotiation this is called "linkage", where an issue in one subject area is connected with an issue in another and both have to be resolved together if either is to be agreed.
At the international level, regimes are usually embodied in conventions, multilateral treaties that are binding on their parties. This is not completely true, since there can be regimes that are formed somewhat less formally by less-binding kinds of agreements as long as the States act as though they are bound by them. Still, fully-articulated regimes inevitably have some form of treaty basis, simply because this is the only way to make compliance by states legally (as opposed to morally) binding.
Applied to the issue of human rights, we can
see that there was a consensus that human rights were essential to international
order and that they needed to be promoted. In the initial negotiations on the
Universal Declaration it was thought that three different agreements needed to
be negotiated: the Declaration (which could be adopted by the General Assembly
but would only involve a moral commitment by States), a Convention (which would
have legal commitments from Member States), and an institutional structure. In
the end, in 1948, it was only possible to agree on the first. Converting the
Declaration into legally-binding commitments has
continued and has been embodied in the eight human rights conventions that we
will look at in the course.
A key element in a regime is a process for verification of State compliance with what they agreed when they raatified a convention. The verification regime consists of a series of rules about what States are expected to do and a series of procedures to show that they are complying with these expectations.
The elements in the regime are designed to allow for independent verification without, however, intruding too greatly on State sovereignty. This is, for the conventions, done through the creation of an oversight expert committee to which States party present reports on compliance.
The basic element is the initial report. The initial declarations set the baseline for determining the pace at which implemention is taking place. There are international procedures to determine the criteria and format of reporting and international organizations analyze the declarations to see whether they conform to the agreed criteria and formats.
The difficulty, of course, is that States
might not tell the truth on their declarations. We will look at how the
various committees, together with civil society and the Secretariat push for
compliance through a process of review, presentation of data and using State's
wishes to be considered by their peers to be in conformity with the global
norms
The next part of the regime is to have a body
that will review reports and determine compliance. Each Convention has an
expert committee to which States report. These committees receive the reports
and often send questions to the State. At an agreed meeting of the committee,
the state makes an oral report, gets more questions, responds to them. The
committee then prepares and adopts a report on the country's compliance which,
in addition, suggests changes tha the country might
want to make before its next report.
In human rights, like other areas, many
non-governmental organizations, especially those like Amnesty and Human Rights
Watch, prepare their own assessments of the report and make these available to
the experts (and also publicize them). This puts additional pressure on
countries.
While this system applies to states-party to
the conventions, in addition the Human Rights Council (which replaced the Human
Rights Commission) makes more general assessments, also based on reporting.
This is a more open procedure, but one which some countries resist.
Finally, in areas where there is a belief
that more oversight is needed, the Council can appoint what are called Special
Rapporteurs who can undertake investigations.
How countries deal with the regime to a
certain extent depends on their legal system.
There are two types. One, derived
from the United Kingdom and the United States, is what is called a “common law
system” in which a country can only ratify an international treaty if its laws
are already in conformity with the elements of the treaty. This had importance in the case of the
Universal Declaration on Human Rights that we discussed last week. The second is a “continental law system” in
which laws are developed to implement treaty obligations as part of
implementation. Most countries use this
as a basis for the regime. As we look at
the eight human rights conventions, keep this in mind.