The Future of Human Rights in a Global Order of Change and Continuity Par Engstrom1, Human Rights Consortium, University

of London The remarkable rise of human rights is deeply connected with the expansion of the global liberal order sustained and promoted by Western States since the end of the Second World War. From dominant understandings of human rights as individual protections against a potentially threatening State to the relative exclusion of socio-economic and collective rights, Western liberal thought has fundamentally shaped both the theory and practice of human rights. Yet, in recent years much attention has been given to emerging powers such as Brazil, China, India, and South Africa and the effects their growing influence may have on the present and future management of issues of global concern. If political, economic and social power is important in understanding the development of the international human rights regime, what are the implications as power shifts in the international system? This multifaceted question is becoming increasingly crucial to address given incipient debates that focus on the meaning and wider implications of the rise of non-Western States. The assertion by rising powers of alternative domestic and regional conceptions of human rights and their pursuit of different understandings of moral and political legitimacy could increasingly bring into question the extant human rights regime. The future of human rights in a changing global order is of a wider significance that goes far beyond the travails of Western policymakers struggling with the notion that their era of dominance in world affairs may be coming to an end. For human rights advocates around the world, as well as for rightsbearing people worldwide, understanding the present and future evolution of human rights constitutes one of the key challenges of the twenty-first century. The 2011 London Debates engaged in a variety of ways with these potentially far-reaching consequences for the international human rights regime. Based on the original contributions to the London Debates workshop convened in May 2011, the authors in this volume re-visit the question of the universality of human rights, and ask how universal human rights standards are interpreted or applied in local contexts of non-Western societies. They explore how the relationship between sovereignty and human rights is understood in the non-Western world, and whether it makes sense to speak of non-Western conceptions of human rights, and if so, what these consist of. And, of course, contributors examine the extent to which we are actually entering a non-Western world and whether the evolution of human rights has become decoupled from the hard power of Western States. In lieu of attempting to summarise the rich discussions in this volume, these concluding comments will focus on two cross-cutting themes that have been given relatively scant attention in ongoing debates concerning the potential future trajectory of the global human rights regime: (i) the return of harder conceptions of State sovereignty and its implications for human rights enforcement; and (ii) the practice of human rights in an enduring international system of States. Sovereignty and Intervention
1

Forthcoming concluding chapter in Simon Bennett (ed.), London Debates 2011: The Future of Human Rights in a Non-Western World, London: School of Advanced Study. The author thanks all the participants in the London Debates 2011 for stimulating discussions, Thomas Pegram for his insightful probing of this chapter, and Simon Bennett and Eadaoin OBrien for their diligent editorial work.

Electronic copy available at: http://ssrn.com/abstract=2078948

The first theme is related to the perennial tensions that exist between the foundational principles of the human rights regime and how they are likely to play out in a global system increasingly characterised by a diffusion of power, preferences, and ideas and values. The history of the development of human rights in the twentieth century could be read in terms of a progressive change towards the idea that the relationship between ruler and ruled, State and citizen, should be a subject of legitimate international concern; that the ill treatment of citizens should trigger international action; and that the external legitimacy of a State should depend increasingly on how domestic societies are ordered politically (Hurrell 1999). In recent decades in particular a range of arguments that purport to legitimise international concern for the domestic affairs of states have gained significant strength, including the implications of growing interdependencies; the emergence of a recognisable international community based on settled norms; and the growing inability of many weak states to provide stability and protect basic individual rights. These arguments invoke understandings of sovereignty not as entitlement but as status, of what it means to be a legitimate member of international society, and of the capacity to engage in increasingly complex transactions with other members of the system. Clearly, sovereignty in the sense of power of the State over its nationals has been eroded by the dramatic development of international human rights institutions and practices. The expansion and increasing degree of intrusiveness of the norms of international society have, in other words, fundamentally challenged principles of national sovereignty that give States absolute discretion with regards to the regulation of internal affairs.2 As the former UN Secretary-General Kofi Annan (1998:2) argued, sovereignty implies responsibility, not just power. These normative shifts have been particularly apparent in contemporary debates over the appropriate response to massive human rights violations and the legitimacy of coercive human rights enforcement. Moves towards politically legitimating humanitarian intervention including the use of force are embodied in the principle of Responsibility to Protect or RtoP, and associated efforts to redefine threats to international peace and security that have pushed human rights compliance onto the agenda of the UN Security Council (UNSC). This development reflects three broad trends in the international enforcement of human rights : (i) the broadening of interpretations of threats to international peace and security to include mass atrocities; (ii) the reality of constant renegotiations of State sovereignty in matters of human rights, and the legitimate form and scope of international intervention in the domestic affairs of sovereign countries; and (iii) the increased acceptability of the use of force for a broad range of policy objectives and associated beliefs in the utility of military power. More specifically, the RtoP doctrine establishes that individual States have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Manifest failure to exercise this responsibility constitutes grounds for intervention, including the deployment of military forces as a last resort. This securitisation of human rights violations challenges norms of non-interference in the internal affairs of sovereign states, and demonstrates the extent to which understandings of what sovereignty entails have shifted over the course of the last decades. These normative developments call into question the traditional legal notion that internal political legitimacy is essentially a matter under the States exclusive jurisdiction, and therefore that it is exempt de jure even from a soft intervention by international organizations or by the entire international community (Tson 1996:34). As such they constitute a gradual move away
2

For a fuller discussion of these normative trends see Engstrom (2010).

Electronic copy available at: http://ssrn.com/abstract=2078948

from the traditional pluralist nature of the international order towards a more solidarist model, and consequently mark a shift of international law from its de facto approach to statehood and government towards a normative commitment in favour of liberal values such as the promotion of human rights and political democracy. However, the doctrine of RtoP and attempts by militarily powerful Western States to legitimatise intervention remain highly contested. The more coercive dimensions of human rights enforcement have prompted significant pushback by some groups of States. Many nonWestern States have traditionally emphasised the importance of protections from external interference and have opposed the idea and practice of coercive and intrusive interventions, whether these are military or economic in nature. There is also a strong tendency among many non-Western States to view international institutions with suspicion and the international order as entrenching the privileges of Western States. The norms of classical pluralist international society, sovereign equality, non-intervention, restrictions on the use of force, and territoriality, remain, in other words, politically salient. In particular, resistance to the coercive enforcement of international human rights at the time of writing (March 2012), most acutely manifested in struggles in and over Syria needs also to be seen in the context of the increasing assertiveness of non-Western States and shifting global power balances. Indeed, current debates within the UNSC reflect an enduring and deep attachment to Westphalian understandings of State sovereignty, with Russia and China, for example, continuing to argue that the responsibility to protect lies with national governments, not the international community. As pointed out by Andrew Hurrell (2007:291292), important non-Western States, including Brazil, China, India, and Russia, have continued to share a preference for relatively hard conceptions of national sovereignty, and, although sometimes professing a liking for multilateralism, have tended to resist the effective delegation of authority to international bodies.3 As power shifts globally, understandings of sovereignty that emphasise sovereign equality are likely to reassert themselves, challenging the demands and expectations of advocates of intervention. It is important to note, however, that the pluralist understandings of equal sovereignty and restrictions on the use of force have distinctly European roots and with the spread of European international society beyond Europe, these norms have offered significant, yet fragile, protections for weaker States. Seen from this perspective, rising powers remain distinctly status-quo countries, especially when compared to the radical revisionism of Western States in recent decades with regards to humanitarian intervention and RtoP, for example. As unfolding struggles over RtoP demonstrate, notions of sovereignty are prone to change, and the potential for innovation, pushback, reversal and stagnation (however understood), is ever present. This has significant implications for the international human rights regime, as one cannot assume that emerging powers will simply be absorbed into the current global order. Countries such as Brazil, China, India, and South Africa are not likely to develop approaches to human rights in line with the moral consensus that many human rights advocates, and Western policy-makers, seek to advance. Yet, as (or if?) the clout of rising non-Western powers continues to grow, they will have to manage increasing expectations that they should play a more active and forceful role in the international human rights regime and that they should assume greater responsibilities in response to, for example, humanitarian emergencies.
3

However, when it comes to delegating effective authority to international institutions, many non-Western States have, as Hurrell (Ibid.) points out, much in common with the United States. Within this company, the European preference for more elaborate forms of institutionalized global governance represents the outlier.

Moreover, for many, the increasing pluralism of voices in global politics and in the international human rights regime is to be welcomed. After all, over the course of the last decade Western governments have been at the forefront in efforts to shift the normative balance between human rights and security towards the latter in the name of the war on terrorism. The results of these efforts both at home (explosive growth of anti-terrorism legislation) and abroad (military intervention and collusion in torture) are widely documented. The widespread human rights violations that have resulted from these policies, combined with the lack of accountability of those responsible, have shown the inherent power-based logic underpinning the global human rights regime. And, on most measures, the use of force for the enforcement of human rights has a chequered record, including in the most recent intervention by NATO in Libya, which is considered by many Western governments and commentators as an example of a successful application of RtoP principles. It is precisely for these reasons that the resilience of the human rights system is not best measured in terms of the degree of support from Western governments. On the contrary, the normative strength can be seen in the ways in which the human rights discourse has reasserted itself in spite of these challenges, challenging even the most powerful States, both Western and non-Western. Human Rights and the Enduring State System in an Imperfect World The second theme concerns the present and future practice of human rights in an international system characterised by enduring State power. The idea of human rights is deeply embedded in the international State system. On the traditional conception of human rights, human rights are to be enjoyed in national societies as rights under national law. The purpose of international law, on this view, is to influence States to recognise and accept human rights, to reflect these rights in their national constitutions and laws, to respect and ensure their enjoyment through national institutions, and to incorporate them into national ways of life (Henkin 1990). The inherited statism and sovereignty of traditional international law and relations have proven to be remarkably robust over the decades, and international human rights instruments continue to affirm the primacy of State implementation of human rights. This perspective on the political dynamics of the international human rights regime views human rights as intimately tied to State power. For some, human rights only come to matter when powerful States take them up and seek to use their own power to enforce human rights standards. For others, the human rights regime might matter but primarily because of what it can do to shift the incentives facing member States by generating publicity, by naming and shaming, by creating positive or negative linkages with other issues. Indeed, many NGOs and advocacy groups seek to leverage State power in their mobilisation strategies in order to sway public opinion within the domestic political systems of powerful States, especially in the United States and Europe. And with global economic and political power shifting East and South, influential NGOs such as Human Rights Watch are now increasingly focusing their lobbying and fundraising efforts on New Delhi, Brasilia, and Pretoria. However, such strategic reconfigurations do not hide the fact that many international human rights organisations are grappling with the question of how human rights will fare in the face of the challenges by emerging powers to the current political power structure (Brown THIS VOLUME). From this perspective, the power shifts in the international system may not fundamentally change either human rights strategies or the prospects for human

rights enforcement. As Widney Brown argues in this volume, human rights have always been vulnerable to the political climate, and the correlation between State actors and human rights violations is not as simple as old-good versus new-bad or even East versus West or North versus South (Brown THIS VOLUME). Clearly, State policies on human rights tend to be inconsistent at best, especially when human rights policies clash with what is perceived to be in States self-interest. As Brown emphasises, emerging powers are not likely to be any less political in their use and abuse of human rights or less likely to have double standards (Brown THIS VOLUME). Indeed, when the interests of States involve commercial ties with abusing States or the prospects of information from a terrorist suspect subjected to stress and duress by foreign intelligence services, human rights considerations tend to be given fairly short shrift, whether the State concerned is the United Kingdom, China, or Sweden. However, does the success of the global human rights project depend on its ongoing championing by powerful States? Is it possible to move away from the idea that States are the owners of human rights, and to locate them instead in the agency of individuals and groups whose struggles human rights seek to promote and protect. The flourishing of human rights over the last few decades is undoubtedly in part due to an intrinsic appeal to a broad range of people of the very concept of human rights. The human rights vocabulary is indeed a potent power in political life as it constructs a universal concern and provides a powerful language in the advocacy for progressive change. In and by itself, such a vocabulary fulfils an important function in the face of the widespread reality of human suffering.4 And yet, the most pressing and thorny ethical dilemmas in the field of human rights are as much about practice and process as they are about philosophical foundations and discursive constructs. A concern with the application and implementation of human rights is therefore as much about practice as ideas. For any theory to be morally attractive it has to sustain an account of how it would, or should, be translated into practice. Human rights have specific roots in traditions of moral theory, but the ways in which they are implemented are most certainly shaped by the social environment in which they operate. Most people still enjoy most of their internationally recognised human rights most of the time through the mediation of the States of which they are citizens. On moral grounds this is clearly reprehensible since peoples life opportunities are to a large extent dependent on accidents of birth or residence. However, given the primacy of sovereign territorial States in international society, concern for the application and implementation of human rights in political life is likely to continue to be primarily directed towards embedding the transnational discourse on human rights in concrete political practices and specific institutional structures at the national level. The future of human rights is likely to remain intimately linked with questions of State power. An alternative system could indeed be one in which human rights form part of the law and practice of transnational civil society, in which the State loses its privileged place and
4

Widney Brown (THIS VOLUME) makes this point about the universality of the human condition and experience powerfully in this volume: [] there is nothing Western about wanting to live free from fear and free from want. The desire to speak out and to participate in political life at the community and State level is alive and well. One of the reasons this is so crucial is that it allows people to demand that their governments fulfil the social contract and protect them from violence, from economic hardship and from deprivation of economic and social rights.

becomes but one participant in a broader social process. The important role of social movements and civil society actors in creating favourable conditions under which human rights norms are internalised in domestic societies has been rightly emphasised in the human rights literature. However, it is clearly the case that the State has made a strong return in Western societies in recent years; partly as a direct result of the dramatic failures of the market that led to the ongoing economic crisis. And in important non-Western countries, such as China, Russia, and Brazil, States are in charge of the commanding heights of economies and societies; albeit in distinctly different ways. Hence the enduring importance of States having the capacity and willingness to address human rights demands, and the continuing centrality of State power for the effectiveness, but also the legitimacy, of the global human rights project. First, in terms of effectiveness, many of todays most intractable human rights challenges, whether in relation to non-State actors (e.g. terrorism and private military companies), transnational corporations, or the fragility and weaknesses of many contemporary polities, State action is often less a source of human rights abuses than the absence of such action. This highlights the shift away from human rights abuses that are unambiguously the result of State action. For an international human rights system that was constructed on the twin premises of the protection of individuals against the State, and the legal notion of State responsibility, this shift constitutes a major challenge. The paradox then is that though the State is potentially a violator of human rights, it may also be humanitys best hope for the fulfilment of a wide range of human rights. Second, although an elusive concept, legitimacy is derived from process as well as outcome. That is, on the one hand procedural legitimacy is enhanced by participatory deliberative processes, by the transparency of procedures, and by the perceived fairness of those procedures. Yet, even the most legitimate process is undermined by a lack of efficiency and practicability in its delivery. As argued by Charles Beitz (2001:269-282), central to the function of human rights is their potential to identify conditions that societys institutions should meet if we are to consider them to be legitimate. From this perspective, effective and legitimate human rights policies should seek to transform State power. However, human rights will remain deeply contested. We should not underestimate the considerable difficulty in reaching a stable and sustained consensus on human rights in a fundamentally unequal and diverse world, within as well as between societies. From claims to the effect that human rights are alien to certain cultures to allegations that they reflect the imposition of values by powerful actors, human rights are fraught with conflict. At the very minimum therefore, for human rights and efforts on their behalf to be legitimate and effective they have to be demanded and fought for by individuals and groups concerned. It is important to note, however, that this does not exclude efforts to extend assistance to rightsbearing agents in order for them to effectively exercise agency. In many contexts, positive steps are indeed required to ensure that individuals and groups have the minimum material resources necessary for the effective exercise of their agency (Sen 2001). In sum, the growing power and influence of emerging States is likely to shape the future development of the global human rights regime. As the emergence and consolidation of the modern human rights regime coincided with and resulted from the expansion of the global liberal order sustained and promoted by Western States, the regime may be facing potentially destabilising challenges. Values are not easily separated from the hard power that underpins them, and as (or if) Western liberalism becomes increasingly challenged by rising powers, the status of human rights as the dominant moral discourse may gradually but steadily erode.

There are, nonetheless, powerful reasons for thoughtful wishing when imagining the future of the global human rights regime. The political discourse and practice of human rights in a period of political and economic flux is indeed likely to be challenged by the emergence of distinctive political discourses that emphasise different sets of values and priorities. Yet the power of human rights as a language of social criticism and as standards of behaviour and acceptable treatment of human beings is likely to endure.

Bibliography Annan, Kofi. 1998. Intervention. Ditchley Foundation Lecture XXXV, p. 2. Beitz, Charles. R. 2001. Human Rights as a Common Concern. American Political Science Review 95, pp.269-282. Engstrom, Par. 2010. The Effectiveness of International and Regional Human Rights Regimes. In: Robert A. Denemark (ed.). The International Studies Encyclopedia. Oxford: Blackwell Publishing. Henkin, Louis. 1990. The Age of Rights. New York, NY: Columbia University Press. Hurrell, Andrew. 1999. Power, Principles and Prudence: Protecting Human Rights in a Deeply Divided World. In: Tim Dunne and Nicholas J. Wheeler (eds.). Human Rights in Global Politics. Cambridge: Cambridge University Press. Hurrell, Andrew. 2007. On Global Order: Power, Values, and the Constitution of International Society. Oxford: Oxford University Press. Sen, Amartya. K. 2001. Development as Freedom. Oxford: Oxford University Press. Tson, Fernando R. 1996. Changing Perceptions of Domestic Jurisdiction and Intervention, In: Tom Farer (ed.). Beyond Sovereignty: Collectively Defending Democracy in the Americas. Baltimore: John Hopkins University Press.