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Norm Setting in International Law and Human Rights

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Norm Setting in International Law and Human Rights ONE NORM SETTING IN INTERNATIONAL LAW AND HUMAN RIGHTS Human rights advocates and those who seek an elaborate and effective human rights system confront an apparent slowing down of the traditional standard-setting forums and processes. Human rights standards were set at a torrid pace from the 1950s through the 1980s, but since then, the clip at which new standards have been made has considerably slowed. This is partly because most, though by no means all, basic rights have been recognized. But there are other reasons why norm setting has slowed and become harder. For one, more actors complicate the negotiating process. What does this mean for the future of standard setting? Will these reasons doom any fresh attempts at norm creation, or will they spur novel and innovative thinking in the formulation of standards? Should human rights actors abandon fur- ther work in standard setting and instead concentrate on the enforcement of existing norms? Is it, in this respect, plausible to argue that adequate standards have already been set in virtually all areas of concern, and that implementation should now become the overriding concern of states, human rights workers, and thinkers? In other words, is the era of standard setting in human rights over, or is it entering a new phase? Predictably, there are strong voices on both sides of this divide. Proponents and opponents of both views within—and outside—the human rights movement have made compelling arguments. The development of human rights norms and standards has been a dynamic and evolutionary process. Although the process started long before the launch of the exercise by the Charter of the United Nations in 1945, the 1948 Universal Declaration of Human Rights must be taken as the effective modern starting point for the human rights corpus. In the years since that 9 © 2016 State University of New York Press, Albany 10 HUMAN RIGHTS STANDARDS seminal document, the process has unfolded with detail and complexity, with each new instrument adding to the fund of wisdom of arguably the most exciting development in international law. The evolution of the process has seen tepid incrementalism and revolutionary sparks of genius, and much wrong has been righted in the world in the past sixty years. Yet the elasticity of human dignity is so complex that it seems implau- sible to declare that it has been established definitively and conclusively. That would be tantamount to declaring that we know all that we ought to, or could, about the human person. Indeed, the notion of human dignity, which the human rights movement seeks to define, is a work in progress. The contours and particulars of that notion are socially constructed and result from the evolution of human consciousness. As humanity stretches the frontiers of freedom and un-freedom and better understands the conditions that create powerlessness, more standards will be set to respond to new and emerging indignities and violations. To be sure, some of these indignities and violations may have always been there but were never recognized as such. Or perhaps new and novel violations will leap out of the pages of the future. Because human relations are never static, it is certain that the world will continue to “discover” new violations. Moreover, existing standards may need revision to chart better paths to implementation, particularly as our understanding of powerlessness evolves. This refinement or elaboration of existing standards may itself yield new standards. For these reasons, many human rights thinkers and activists believe that the era of standard setting is far from over. Experience has demonstrated that the mere setting of standards is not sufficient. The purpose of establishing norms is to enforce them and to change conduct or sanction misconduct. Transforming the way people and institutions behave is first and foremost a conceptual matter, which must be followed by conforming an action to a norm. In fact, the push for the real- ization of human rights is a long and arduous journey, and standard setting is but the first step in that process. Norms become the signposts for future behavior, and standards—any standards—are meaningless if they remain abstract without a systemic structure for their implementation. Norms that mean something must provide a pathway for enforcement or a structural roadmap for their practical realization, or they will have no bite or effective purpose. Thus, the implementation of human rights standards is as important as their formulation or development. Standard setting should therefore be seen not as an end in itself, but as a means to an unknown end—an end that is still in flux and in the process of definition. The ultimate purpose of standard setting is to create a certain core of irreducible, incontestable norms that must be adhered to if human rights are to be respected. Only © 2016 State University of New York Press, Albany NORM SETTING IN INTERNATIONAL LAW AND HUMAN RIGHTS 11 in the observance and implementation of norms can we determine whether the norms were worth formulating in the first place. The elaboration of standards, therefore, is a critical part of the human rights project. This conceptual part obviously draws on lawmaking skills that are informed by the wrongs that need to be righted or the practice being targeted. The act of setting standards signals that a matter of univer- sal importance needs urgent attention and requires the international com- munity to flesh out collectively a universally acceptable norm or standard around which consensus can be marshaled. This “negotiating” phase of norm setting is subject to virtually every conceivable influence, some not directly concerned with curbing the wrong in question. Many actors may seek to water down, or even defeat, the entire exercise. Whatever the case, the elaboration of standards is a realization of the existence of a gap, a lacuna, that many, if not most, think must be filled. Yet there is a danger of rely- ing solely on the setting of standards to right wrongs, therefore creating too many of them to the point of redundancy or saturation. Rights discourse, some have argued, remains a powerful tool for protecting human dignity only if it is not employed loosely or invoked lightly. Nicolas Valticos, for instance, pointed to the difficulties inherent in the proliferation of standards, especially in the International Labor Organization (ILO).1 While some may suggest that “deadwood” be trimmed out, a standard that is no longer urgent, or even relevant, for one country may still be of value to another or perhaps premature for a third. Further, there are legal problems in trying to delete or render moot a standard that has been passed formally. It is best to see standards that have already been set as a fundamental wisdom from which states and other actors can draw. HISTORICAL ANTECEDENTS The normative regime of international human rights law originates from liberal theory and philosophy, which is not to say that international law is responsive, ab ignitio, to the ideals of liberalism; the journey has been, and continues to be, a long and arduous one. The rise of the modern nation-state in Europe and its monopoly over violence and the instruments of coer- cion gave birth to a culture of individual rights to contain the abusive and invasive state. Rights were born of necessity as a shield against the preda- tions of the state. John Locke reduced this relationship between the state and the individual to a philosophy in his Two Treatises of Government.2 In liberal theory, individual rights act as a bar against the despotic proclivities of the state. By nature, the state is an ogre, an instrumentality bent on the consumption of humans because its tendency and nature is oppressive © 2016 State University of New York Press, Albany 12 HUMAN RIGHTS STANDARDS and controlling of the individual. A state stalks the landscape to map out how to retain and fortify control. It is on this theoretical foundation that international human rights law arises. Ironically, the human rights corpus seeks to make the modern state the primary guarantor of human rights, even though the state is at the same time the basic target of international human rights law. In other words, human rights law encodes the treatment of individuals by their states.3 The relationship between a state and its citizens is both symbiotic and oppositional: it is the paradox of the state and the notion of the social contract. For several centuries, however, these norma- tive limitations remained the exclusive province of constitutional and other domestic legal regimes. It was not until after World War II—following the abominations of the Third Reich—that a binding system of international human rights law was created. Therefore, at its core, human rights law is an internationalization of the obligations of the liberal state. Although human rights law is a species of international law, it differs significantly from other areas of international law. While virtually all fields of international law have an international character—that is, they of necessity involve relations between states, their citizens, or some other shared inter- est—human rights law is also a domestic compact within a state. Human rights matters depart from the “external” formula of other international law regimes because they do not necessarily involve an interstate or interna- tional question per se. Nevertheless, the formulation and implementation of human rights law has an international dimension. Moreover, human rights law does not obviously or always trigger cross-border repercussions. In fact, most human rights violations are committed by a state within its borders; only when violations pass a certain threshold does the international com- munity take real notice.
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