Wednesday, January 04, 2006

International Law and Human Rights

I've just ended a month-long stint as a guest blogger over at Opinio Juris. One of my final posts was this one on human rights and international law, in which I argued that while it may be preferable and good to move towards universal standards of human rights, there are few, if any, international mechanisms that can advance such a convergence. Rather, as one person mentioned in the comments, any process that moves countries towards globally-accepted standards will be slow and very likely market driven. My post was then greeted with a response from Professor Bernard Jacobs who writes "local customs may, in fact, be necessarily local and, more than that, they may be a better social solution than the one that seems, due to your local customs, more reasonable. This is not a relativistic argument, but one that grows out of the contestedness of morality. Believe me, our local customs are constantly – even here in the backward U.S. – under great and continuing pressure from our striving with other rules and ways of doing things. I am amazed, not so much of different ways of living, but from my sense that so many of them may be right, but inaccessible or wrong, but all too accessible."

Perhaps, but I'm not so sure. As Immanuel Kant wrote in the excellent Idea for a Universal History with a Cosmopolitan Purpose, "the will's manifestation in the world of phenomena, i.e. human actions, are determined in accordance with natural laws, as is every other natural event. If [one] examines the free exercise of the human will on a large scale, it will be able to discover a regular progression of freely willed actions. In the same way, we may hope that what strikes us in the actions of individuals as confused and fortuitous may be recognized, in the history of the entire species, as a steadily advancing but slow development of man's original capacities." That is, human history, over time, can be seen as going somewhere. Our development, on a macro scale, is not random or haphazard, but represents improvement. It is teleological.

The Universal History serves as a intellectual prelude to Perpetual Peace in which Kant argues that international society is moving toward world government. While Kant gives this move moral force, one need not do so. Human rights, as we understand them can also be the result of politics and utility. As societies develop, those that have "better" and more efficient conceptions of rights thrive, while those societies that do not, fail. This is not to argue that any one society has it all correct. But, what does seem clear to me, and as I argued in a seemingly unrelated post, is that US hegemony creates space in which countries are left free to determine what works best. Thus, the Kantian progression coincides with the expansion of global human rights, both of which are simultaneously enabled and constrained by American power.


Lisa said...

But I think a teleology which emerges from the imperatives of utility will look very different from one that emerges from the imperatives of morality. Yes, we can believe that human activity is directed toward a goal, but knowing why and how it is thus directed can point us toward information that can have profound tactical ramifications in the "real world" of politics. After all, Kant also distinguishes between behaving out of duty and behaving in accordance with duty, the former being the more reliable and morally superior stance. States that behave in accordance with universal standards rather than out of a genuine sense of obligation will necessarily be problematic for the establishment of universal human rights standards.

In addition, I am not sure about the claim regarding international mechanisms of promoting human rights. If you mean international institutions, then I agree. If you mean any sort of transnational entity, then I disagree. As one of your commentators noted on Opinio Juris, "globalization" might be a normalizing force. Religion might be another.

Seth Weinberger said...


First, to address your second point, I do mean international institutions. I don't see a formal, legalized means of advancing international accepted standards of human rights.

As to the first point, it may be true that we would prefer states to follow laws and protect human rights because it is right and good that they do so, but it's more likely that they'll do it, initially at least, out of self-interest. However, as a state adopts and conforms to new laws and standards, it often "internalizes" that new norm, where a law becomes good in and of itself and becomes part of that state's identity. Look at the way in which prohibitions against biological and chemical weapons have achieved a moral force (also, think about anti-smoking or mandatory seat belt laws on a domestic level). So, even if states are adopting "better" standards of human rights for utilitarian purposes, those rights will ultimately develop a genuine sense of obligation and become intrinsically good. [For more on the internalization of laws, see the fall 1998 issue of the Houston Law Review (vol. 35, no. 3) in which Harold Koh and Robert Keohane discuss the process by which states internalize international law.]

stefan moluf said...

I have to agree. On a practical level, I would prefer to offer nations with "problematic" histories regarding human rights incentives to change their behavior in the short term than try and achieve the same result through cultural shift.

It is reasonable to assume that it is far easier to rally moral force around an existing law than inspire change from the grassroots level. While the latter may be more desirable, how many will suffer in the meantime?