Although sceptics like Stephen Hopgood argue that the global human rights model championed by international rights groups has reached its conceptual limits, human rights groups seeking to restrain predatory state behaviour continue to use international law as a minimum standard of state conduct. The age-old challenge that rights groups face is to achieve state compliance with international law, often in the face of other, much stronger forces that influence and determine state behaviour.
The truth is that states are seldom interested in respecting international law and human rights in their own right. Neither are states compelled to change their behaviour when rights advocates demand respect simply “because it’s the law.” Why should they? Many states perceive international law as a set of “guidelines” for international cooperation, short of law, that requires their consent and derives their effectiveness from states’ voluntary action. It is rare for third states to compel offending states to end rights violations, although third states may invoke such violations to justify coercive measures imposed for ulterior motives.
In the absence of hard power, how can human rights groups bring a wrongdoing state into conformity with international law, let alone encourage another state, engaged in interstate relations with the wrongdoing state, to apply pressure to bring the wrongdoing state’s conduct into conformity with international law?
Beyond ‘naming and shaming’
Most groups that deploy the human rights and international law framework and document violations seek to raise the awareness of a broad audience, including policymakers and their constituencies, through campaigning and lobbying. In practice, much of these groups’ work entails the dissemination of public materials to attract local and international media attention in order to pressure states to change specific institutional practices.
The mobilisation of the “naming and shaming” method of changing state practice, which targets the reputations of states under the banner of respecting human rights, suits best the likes of Human Rights Watch and Amnesty International – groups that are equipped with the funds, international standing and brand-name credibility to get the attention of high-level officials. This strategy is less successful, however, when utilised by local groups, including Palestinian NGOs, which generally lack international political clout and are often portrayed as biased by pro-Israeli actors.
Many rights groups will themselves admit to an overemphasis on reports, press releases, conferences and workshops that often react or respond to violations rather than proactively target their political root causes. Enforcement of international law, where it occurs, depends not only on the political winds, but also on the consequences of certain violations under some states’ domestic legal and political orders.
While efforts to document abuses and advocate for changes in political discourse and legal narrative are important, further thinking is needed about the allocation of limited resources to traditional “naming and shaming” methodologies. How can states be compelled to respect human rights and international law and furthermore require other states’ good-faith compliance? This is a critical question not only in the Israel/Palestine context, but also in many other contexts characterised by political stalemate and territorial conflict, including Western Sahara, Northern Cyprus, Abkhazia, and Nagorno-Karabahk.
Overcoming political discretion
Rights groups could significantly improve their effectiveness by exposing the way third states breach their own domestic legal and political order commitments through their interstate relations with wrongdoing states.
For example, a general principle of European Union law – as enshrined in the Treaty of Lisbon, which established the EU, and as affirmed by the European Court of Justice – is that the EU must ensure “respect for international law in the exercise of its powers,” including in its external relations. The EU, bound by its general principle of “respect for international law” and by specific policy commitments concerning the status of Palestinian territory as occupied, cannot give legal effect to such unlawful Israeli claims by allowing such acts and the situations they create to form the basis for the application of EU law. However, due to the deficient construction of the agreements, the EU found itself doing exactly that.
The MATTIN Group, a small, human rights-based partnership dedicated to promoting more effective compliance with international law during armed conflict and belligerent occupation (where I work as an associate), focuses on the relationships and engagements between Israel and the EU and its member states. It draws on the disciplines of law, economics, commerce and trade policy to point out to third states that a particular engagement requires specific changes in the other state’s institutional practices.
Since the 1990s, MATTIN has focused on implementing strategic lobbying and advocacy efforts, promoting greater consistency between the EU’s obligations under its domestic law and the manner in which it has structured its relations with Israel or another wrongdoing state. MATTIN has successfully encouraged the EU to remedy some of its engagements with Israel by pointing out deficiencies in the way that they were structured. A recent example is a set of guidelines issued in July of this year for the implementation of recently amended EU law that provides for the exclusion of Israeli entities based or operating in settlements (e.g. Ahava and the Israeli Antiquities Authority) from receiving EU research and development funds.
The recent EU guidelines on the eligibility of Israeli entities for EU research and development funding address only one of the 60-some areas of EU-Israel relations that will also need to undergo similar analysis and possible “housekeeping” revisions to ensure the “full and effective” implementation of EU law. In turn, Israel will need to make the necessary adjustments in its institutional practice to satisfy the EU’s needs to respect international law norms as embodied in its domestic law. The result will be Israel’s gradual socialisation through accommodation of those norms.
The paradigm that MATTIN has developed has proven effective in getting states and international actors like the EU not only to promote but also to guarantee respect for international law by those states with which they engage. The demand to conform to certain criteria of lawfulness, including human rights and international law, is a matter of legal necessity for the state making the demand, not just political will or discretion.
This approach has significant promise beyond the case of Israel and Palestine because it moves the decision to respect or enforce human rights and international law out of the realm of political discretion and into the realm of internal legal necessity. Human rights groups that have long called on states and international actors to take a more activist role vis-à-vis states that violate international law should be encouraged to seize such opportunities.