Is International HR law really law ? How can we tell ? 

Is International HR law really law ? How can we tell ?

I .“Human Rights as Politics” By Michael Ignatieff

1. Human Rights and Moral Progress

• The development of HR can be seen as moral progress, “an increase in our ability to see more and more differences among people as morally irrelevant” → a response to WWII abominations (may be eurocentric).
• HR as a restoration of agency → giving individuals the juridical resources to stand up against the state when it orders them to do (or does) wrong.

2. The Juridical, Advocacy and Enforcement Revolutions

• Juridical Revolution: articulation of HR norms and treaties by states that believed there was a need to create such instruments to encourage compliance.
• HR as a “condition of entry” within the international community → complying gives states reputational benefits + allows to avoid retaliation/shaming by other states.
• Enforcement Dilemma: Human rights do not have a preventive effect (HR has not stopped the villains) BUT has empowered bystanders and victims.
• Advocacy Revolution: emergence of a network of non-governmental HR organizations → keep state signatories of HR conventions on check
• Enforcement Revolution: beyond naming and shaming, creation of new instruments to punish HR violators → International tribunals and prosecutions → important elements that break the circle of impunity.

3. Establishing the limits of Human rights

–     Theory vs practice : The aim of HR language is to protect and enhance individual agency  BUT activits do not accept this limit in practice → rules of informed consent need to govern HR interventions.

–      Western interventions blur the line between the rights of states and the rights of citizens who may be oppressed within them (political dimension) + HR increasingly seen as the language of a moral imperialism (cultural dimension) → we need less interventions and more respect for state sovereignty .

–      Rights create a spirit of non-negotiable confrontation (calling a claim a right is to call it non-negotiable) → they do not facilitate compromise

–      HR is politics  →  It is necessary to reconcile moral ends to concrete situations + accept painful compromises between means and ends, but between ends themselves (ends/rights may conflict)[unique_solution]

1. “How is International Human Rights Law Enforced?” By Harold Hong Koh

International norms are enforced through a transnational legal process composed of 3 phases: Interaction, Interpretation, Internalization.

1. From Compliance to Obedience

(1) Coincidence : it is a coincidence that in practice agents follows the rule BUT why would millions do so ?

(2) Conformity :  agents conform to the rule when convenient but feel no obligation to do so when inconvenient.

(3) Compliance : even if moral obligation is not felt, agents comply for a variety of external reasons.

(4) Obedience :   agents internalized the rule and made it a part of their internal value.

B.The Relationship Between Enforcement and Obedience

5 explanations for why nations obey: (1) power/self interest (2) Liberal explanations :Rule Legitimacy/Political Identity (3) Communitarian Explanations (4) International Legal process (5) Transnational legal process explanations

– The “Horizontal” Story : Principal actors: Governments and intergovernmental organizations →  pressuring each other to comply with human rights at a horizontal, intergovernmental level.

– Difficulties: enforcement (few mechanisms);  rules as largely declaratory and precatory and →  Impotence

– The “Vertical” Story: Principal actors: (nongovernmental) transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks.. → seek to develop transnational issue networks to generate political solutions.

– Different types of internalisation of norms: Social internalisation, Political internalisation, Legal internalization

III. “Politics as a vocation ” By Max Weber                                                                                                                 -“Every state is found on force” → a violent view of state-making → echoes the Hobbesian view of the state                                   –A state is a  human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory →  the state is  considered the sole  source of  the ‘right’ to use violence.                                  —Politics means striving to share power or striving to influence the distribution of power, either among states or among groups within a state                                                                                                                                                           -Growth in government’s size and the prevalence of the legal profession in politics are linked → management of politics through parties = management through interest groups →  lawyers are well suited to defend interests.

Relevant vocabulary :

• Juristic rationalism : The leading faction, the patriot (also called constitutional) faction, during the French revolution, desired a dramatic overhaul of the old system. Most of its leaders were lawyers who desired the creation of monarchy bound by the rule of law. Their desire of fraternal democracy was necessarily bound to legal beliefs and theories that Weber refers to as Juristic rationalism . (Weber, 2)
• Realists: Date back to Thomas Hobbes. Offer an explanation of state obedience through power: nations never truly “obey” international law, they only comply with it. According to them, the important factor of compliance is neither altruistic nor normative, but is linked with the realist values of power and coercion. (Koh, 1401-2)
• Rationalists: School of “rational choice” theory. To the question “why do nations obey international law?”, their answer is self-interest rationale. Nations may choose rationally to follow rules out of a sense of self-interest. (Koh, 1402)
• Familiar power explanation (Realist School) : Dates back to Thucydides. There is no real “obedience” of International law, only coincidence between national conduct and international rules that result from power and coercion. (Koh, 1402)
• “Rule-legitimacy” (Liberal School): nations feel some sort of internal “compliance pull” toward certain rules that they feel are legitimate. (Koh, 1403)
• Political-identity theory (Liberal School): whether or not nations comply with international law depends crucially on the extent to which their political identity is based on liberal democracy. (Koh, 1404)

Discussion questions :

• The modern concept of positive (not natural) law, as defined by John Austin, refers to “general commands issuing from a sovereign”. But, International HR Law is not the fruit of “the commands of a sovereign,” because there’s no sovereign above the states. Hence, is international law an oxymoron ?
• Do you think that international human rights law violates the principle of sovereignty ?
• What could be done at the national or international level in order to enhance obedience to Human rights norms?
• What does it mean for rights to be defined as part of International Law? What are the positive and negative consequences of expressing HR claims as legal claims?

Connection to current events :

On American exceptionalism, lawlessness and the ordering of the assassination of the Iranian military commander Qassem Suleimani :

https://www.scotsman.com/news/opinion/columnists/why-donald-trump-should-read-robert-burns-poem-to-a-louse-henry-mcleish-1-5071187

https://www.middleeasteye.net/news/was-it-legal-what-us-and-international-law-says-about-trumps-strike-soleimani

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