Beyond the law – towards more effective strategies for protecting human rights

Emilie M. Hafner-Burton is Professor at the University of California, San Diego, Director of the Laboratory on International Law and Regulation (ILAR) and author of Making Human Rights a Reality (Princeton University Press, 2013).

We in the international human rights community must grapple with the reality that the machinery of human rights law is in trouble.  The number of international human rights laws is growing, as are the bureaucracies to manage this machinery.  Yet governments routinely break these laws and eschew procedure.  International human rights bodies are packed with human rights abusers, some of whose interests lie more in window dressing than in making the system actually work. With these foxes guarding the henhouse, much of the human rights legal system has fallen into bureaucratic and political gridlock. Its legitimacy is waning as it proves impotent to protect human rights in most of the countries where protection is most needed—those run by governments that don’t want outside interference. 

In a book published last year, I argue that moving beyond this stalemate will require different strategies.  While reformers are already working overtime to improve the system, serious improvements have been elusive.  Doing better will require work on at least four fronts.  

First, effective strategies for improvement require more clinical and granular assessments of when the system functions well and when it falls short. We already know that when it comes to the law, the current system generally corresponds best with protecting human rights in the countries where the worst human rights abuses are least likely to occur—those at peace, and with a strong civil society already working hard to consolidate local institutions. For most countries, there is little or no apparent relationship between a government’s formal commitments under international human rights laws and their actual respect for human rights. In some cases, the trends actually point in the wrong direction—once a country joins a treaty its record of abuse actually gets worse.  Researchers don’t agree why these unintended consequences may arise, but some of the possibilities are particularly worrying. But these trends are all very general, picking up on only the biggest of shifts in human rights behaviors. The human rights community needs the tools of social science applied to the evaluation of our current strategies.

Second, one of the hardest things for this community to do is to stop adding more agreements and institutions.   We have a lot of law on the books. Yet the system is already unable in most countries to effectively implement existing standards. The effort going into making new, often redundant standards and procedures is distracting from the more urgent task of more fully implementing existing, core human rights—such as rules against torture, discrimination against women, and trafficking of children. Adding more laws and procedures will mean more will be broken or ignored.  And more noncompliance will further erode the legitimacy of the system, which may beget even more violations in the future.  The one big, and urgent, exception is discrimination on grounds of sexual orientation and gender identity.  The human rights of LGBT persons still need formal recognition by the international community.

Third, human rights promoters need to realize that while we work mainly through NGOs, it is state power that plays the decisive role in much of world politics. States are at the center of this problem and their foreign policy can be at the center of more solutions. The countries that care most about human rights can, and should, play a more central role in pushing to protect them around the world. In a variety of situations and ways, they can give perpetrators a reason to act differently even when legal procedures are ignored. The problem, of course, is that these efforts will fail unless they are sustained or persuade societies that respecting human rights is valuable and not just cost-effective. For that to happen, foreign pressure will require more vetting and support by local norm entrepreneurs inside countries who help tailor outside pressure to fit the local setting. Successful stewardship requires not the single minded paternalism often associated with US or EU foreign policy to lecture the world about human rights, but rather working much more closely with local stakeholders—NGOs, national human rights institutions (where possible), religious leaders—over sustained periods.

Fourth, we need to set more priorities based on the likely consequences of success, rather than hope or media publicity or standard procedure. The human rights promotion system can become more strategic in how it allocates resources. It frequently spends resources on efforts that are targeted on perpetrators that will probably never be swayed by the system without domestic upheaval—another UN resolution against North Korea probably isn’t going to make much difference. Efforts to promote rights are often erratic and ephemeral rather than sustained over the long term—today, donors are pouring money into Afghanistan, often without coordination, but it remains to be seen whether that attention lasts long enough to actually facilitate the massive domestic transformation that will need to take place for human rights to one day be secure. And many efforts are generally not well suited to the underlying causes of the problem—when abuse stems from cultural and social norms, the shaming tools at the heart of the system not only fall on deaf ears, they often backfire. Scarcity demands priorities. Let’s concentrate more resources where the best evidence indicates that actors, policies and laws actually make a positive difference. 

We in the human rights community must grapple with a critical tension. On the one hand, international law plays the central role in defining human rights, and the universal norms of international law are profoundly appealing. On the other hand, much of the effort that actually advances those norms lies somewhat outside the universal legal system—it rests with particular human rights promoters, both countries and non-governmental organizations, and hinges on the adoption of strategies, many of which include a turn away from global legalism and prioritizing some rights and some places over others.

Resolving this tension requires analysis and honesty about what works. It requires deploying tools, including law, which can build legitimacy around human rights norms. It requires expanding the parts of the system that work best, and fixing or halting the parts that don’t. Luckily, the backbone for a clinical approach to assessing and promoting human rights is already in place. Systematic research is beginning to show when and where promotion tools correspond with measurable improvements on the ground.  We need more of that research. And many NGOs are expanding their data collection and analysis.  It is time for the academics and the policy makers to work more closely together.