New Forums to Debate and Defend International Human Rights
WASHINGTON — A cornerstone of the international order established in the wake of World War II was the dual commitment to free and equal state sovereignty and the universality of human rights. These commitments stand in tension with one another, and they give rise to some of the deepest unresolved conflicts of our world. Over the last three decades, disagreements over the status of international law have led to acrimonious theoretical and political debates and a transatlantic rift has emerged, perpetuating The Democratic Disconnect.
While Europe, under the impact of the cumulative jurisprudence of the European Court of Justice, the European Court of Human Rights, and strong constitutional courts, has moved toward rights protection and increasing harmonization of domestic laws with international treaties, a strong sovereign and isolationist countercurrent has become powerfully visible in the U.S. Supreme Court. The Supreme Court’s decisions and the politics of the United States vis-à-vis international law have been something of a puzzle for many and a source of deep dismay for others. Given the U.S. government’s public commitment to promoting international human rights, it is surprising to see the vehemence with which human rights have divided the Court and encouraged it to assume its current posture toward international law. The United States never ratified the International Covenant on Economic, Social, and Cultural Rights or the Convention on the Elimination of All Forms of Discrimination Against Women, and last year it rejected The Convention on the Rights of Persons with Disabilities. The United States has also attached non-self-executing declarations to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Racial Discrimination, and the Convention against Torture. Furthermore, since September 11, 2001, U.S. violations of international human rights law have abounded: the treatment of prisoners in Guantánamo, Abu Ghraib, and Bagram Air Force Base; the use of torture or so-called “enhanced interrogation techniques”; secret renditions of prisoners by the CIA; and, increasingly, targeted killings and the collateral deaths of civilians from drone attacks in Afghanistan, Pakistan, and Somalia. Some European countries have been just as unprincipled by cooperating with the United States in extraordinary renditions, while in other cases, the security threat posed by worldwide Islamist and jihadist groups has morphed into a “cultural war” against Islam and Muslim migrants. Although the transatlantic rift may have narrowed in some respects, it has not been in a positive way.
While significant doctrinal and jurisprudential differences remain between the U.S. and European courts concerning the prominence of international treaties, there has been an unfortunate convergence in the violation of international human rights, be they those of religious and ethnic minorities, migrants, refugees and asylum seekers, or of those subject to secret detentions and extraordinary renditions. Nonetheless, what has emerged in the last decades under the influence of the international human rights regime are transnational legal sites in which participants from different legal jurisdictions and traditions confront and converse with one another. These are the new forums of legal and political activism, which challenge governments when they violate human rights and request responsibility, accountability, and transparency. Through the emergence of transnational courts such as the European Court of Justice, International Criminal Court, and the Inter-American Court of Human Rights, judicial conversations about the interpretation, implementation and reach of human rights have become institutionalized transnationally. NGOs such as Amnesty International, Human Rights Watch, and Médecins Sans Frontières play an active role in raising people’s consciousness of human rights violations across the globe. They name and shame governments, leaders, and organizations for their practices, bear witness, and provide testimony. Finally, we have seen increases in civil society activism on women’s rights, ecology, the protection of indigenous peoples, migrant and refugee rights, and the rights of gay, lesbian, and transgendered people, all taking the form of inter- and transnational movements.
These movements not only learn from one another, adopt each other’s tactics and strategies, and build transnational coalitions, but they also serve as living crucibles for the interpretation and expansion of international human rights norms. Even when governments and courts stray from the principles and values of international human rights, there remains a global legal sphere in which civil society and democratic activism invigorate the embattled human rights regime.
Seyla Benhabib is a senior fellow at the Transatlantic Academy, an initiative of the German Marshall Fund of the United States in Washington, DC.
The views expressed in GMF publications and commentary are the views of the author alone.