The Future of Human Rights: Regressive Trends and Restorative Prospects
Declining Protection of Human Rights: Why?
Points of Departure
31 Oct 2019 – Reviewing the global situation, the then UN High Commissioner for Human Rights, Zaed Raad Al Hussein of Jordan opened a 2018 conference devoted to the 25th anniversary of the 1993 UN Conference on Human Rights and Development held in Vienna, on a decidedly pessimistic note. Instead of doing the usual on such occasions, that is, celebrating the progress made since the earlier event, Prince Zaed emphasized the disturbing evidence of regression with respect to a broad range of issues bearing on the protection of human rights embedded in international treaty instruments as evidenced by the practice of states. He insisted that without fundamental changes in patterns of governance by sovereign states and in the operation of the world economy it would be naïve to expect an improved international atmosphere for human rights.
In the background of these remarks was the realization that we live in a state-centric world, which means that there is a significant degree of correlation between the quality of national governance and the presence of a political will on the part of leaders of sovereign states that is dedicated to the realization of human rights. In this regard the most important factor contributing to the declining protection of human rights is the disturbing global trend since the year 2000 away from liberal democracies and toward illiberal democracies. The essence of illiberalism is a resurgent nationalism that devalues international sources of authority such as international law and the UN, and exhibits an unconditional reliance on sovereign rights to act autonomously unless their internal public order system challenges geopolitical strategic priorities (as is currently the case with Venezuela, Iran, and Cuba). At this time, there are almost no important countries that have not embraced this hyper-nationalism of illiberal democracy, which is generally abetted by an autocratic governing style that is impatient with constraints associated with constitutionalism and the rule of law.
The more human rights form of liberalism is especially concerned with patterns of governing, avoiding the abuse of citizens by oppressive mechanisms and facilitating participation in the governing process by way of political parties and rights of free expression. This liberal perspective tends to overlook the relevance of economic dimensions, including the impact of the market and the establishment of social protection mechanisms to overcome poverty and to meet needs of individuals relating to health, education, and housing. The collapse of the Soviet Union was interpreted in the West as demonstrating the superiority of capitalism and the failure of socialism, which also had the effect of removing socialism as a political alternative in many countries, which contributed to the rise of unrestrained capitalism internationally and nationally, definitely weakening the performance records of governments with respect to economic and social rights quite independently of the trend toward illiberal democratic leadership. The efforts by the United Nations to put forward Sustainable Development Goals associated with economic and social challenges substitutes a voluntary process of governmental policymaking for the obligatory commitments of international human rights law, and seems to lack the kind of political traction needed for reaching the ambitious goals set for attainment by 2030.
Ever since 1945 the leader of international liberalism was the United States, which gave human rights considerable visibility in the Cold War Era. The liberal West regarded human rights as essentially reduced in scope to civil and political rights while the socialist East proclaimed their support of economic and social rights as providing the material pre-conditons of human dignity for all. Human rights in these two forms were a competitive ideological focus for these geopolitical rivals, strongly reinforced in the West by the emergence of transnationally organized NGOs dedicated to the promotion and protection of human rights, but overwhelmingly associating human rights with civil and political rights, and not according serious attention to economic, social, and cultural rights. This civil society activism led many observers to conclude that human rights only concerned political and civil rights, a view never accepted in the global South, which tended to privilege economic, social, and cultural rights. In truth, the U.S., much more than its more social democratic European allies, never accepted the view that ‘human rights’ extended to the material needs of people, and always viewed such help ambivalently, as given by governments at their discretionrather than as a matter of obligation. This meant that even the provision of food or health care was voluntary, and not a matter of right. With the style and substance of Trump’s leadership, it has become clear that the international human rights of vulnerable people do not inform public policy unless market manipulations operate to raise wages, reduce unemployment, and improve living standards. Human rights, as rooted in international sources of legal and moral authority, are rendered irrelevant by such an orientation, and are viewed as obstacles to the efficient promotion of investment and trade, which according to such thinking, operate best when governed by market forces rather than by moral sentiments and legal norms.
During the Cold War there was some political motivations for achieving progress with respect to human rights, especially after Jimmy Carter in 1976 made human rights an essential feature of American foreign policy. In the following years, the ideological rivalry with the Soviet Bloc led both sides to claim that their version of human rights was superior to that of their adversary. In essence, the Western claim was that the freedom of the individual was being protected, while in the Soviet bloc the claim was that the collective wellbeing of society was upheld. The practical influence of human rights reached its climax in the anti-apartheid campaign that combined pressure exerted inter-governmentally and by way of the UN with influences of transnational grassroots activism, especially via sanctions and boycotts, given expression in a robust BDS set of initiatives. With illiberal democracies now running the international show, the sun has set temporarily for the human rights movement, and is further threatened by ongoing and unmet challenges throughout the world.
Threats and Challenges to Human Rights
Against this background, a number of threats can be mentioned as intensifying the trend toward the decline of human rights as a framework relevant to the behavior of states internally (state/society relations) and internationally (state to state relations). Basically, the current atmosphere highlighting the legitimacy of ultra-nationalism from a geopolitical standpoint translates at the level of policy into a reciprocal posture of ‘see no evil, hear no evil,’ and thus shields from accountability those that ‘do evil’ to their own people and to others. Rather than provide full expositions of the most salient developments adverse to the implementation of human rights, threat will be enumerated and identified:
- Exclusionary nationalism: hostility to those seeking asylum due to forced departures from combat zones or economic/ecological disaster areas leading to a global migration crisis expected to worsen in coming years; illiberal responses include walls, detention centers, mistreatments, family separations, arbitrary and cruel deportation procedures and policies. Discriminatory attitudes toward immigrants, especially severe if racist criteria of exclusion relied upon.
- Autocratic political leadership: autocrats are intolerant of dissent and oppositional activity, which leads to interferences with freedom of expression, control of media and criminalization of oppositional journalism, interferences with academic freedom, endorsement of excessive force and police brutality, suppression of minorities, violence against dissenters.
- Remnants of Colonialism: international failures to implement the right of self-determination, including dismantling of oppressive structures, in relation to several outstanding unresolved conflicts associated with European colonialism, including Palestine, Kashmir, Western Sahara. These failures produce prolonged suffering for entire peoples who are systematically oppressed.
- Counterterrorism: reliance on torture, denial of POW status to terrorist suspects, non-compliance with international humanitarian law (Geneva Conventions), drone warfare on battlefields without boundaries. Modern states find themselves vulnerable to terrorist tactics, and often suspend their compliance with human rights standards to secure information or to express a vindictive hatred of such adversaries.
- Capitalism: deference to market forces, capital over people, with gross inequality and poverty resulting, and economic and social rights completely marginalized as normative limits on public policy.
- Climate Change: the failure to take prudent steps to control greenhouse gas emissions in conformity to the consensus among climate scientists encroaches upon and threatens the right to life and the right to health, among other rights, and completely rejects the efforts to achieve an international order capable of and dedicated to the realization of human rights for all, an encompassing obligation set forth in Article 28 of the Universal Declaration of Human Rights.
- Technological Innovation: the expected accelerated reliance on robots and automation threatens the livelihoods of millions throughout the world, and undermines prospects for decent work; the meta-data surveillance by state and market forces subverts privacy and threatens fundamental freedoms; genetic engineering poses additional threats to human dignity that are not yet fully appreciated or even understood.
Expectations for the Future
The most haunting questions concern whether these pressures adverse to compliance with and implementation of human rights are likely to diminish or even be reversed in the years ahead. A number of key factors to consider will be identified here as questions, but as with the case of adverse trends, the issues will not be fully discussed.
- Can Liberal Democracy be Restored and Enhanced? It would seem that prospects for restoring and enhancing liberal democracy vary from country to country, and reflect particular conditions involving the procedures for selecting leaders and the strength of legislative or parliamentary institutions and judicial independence, the resilience of the constitutional order, the gravity of perceived security threats, role of money, impact of special interest lobbies, corporatized media. Enhancement of liberalism would involve two broad sets of developments—the inclusion of economic and social rights as internationally protected human rights and the recognition that climate change and declining biodiversity have major impacts on fundamental human rights.
- Can the Global Migration Crisis be Resolved or Mitigated at its Source? It appears that migration pressures will be resisted by countries that feel threatened by large-scale entry of immigrants, especially if their arrival is massive and without legal documentation. The only solution in a state-centric system of world order is by addressing as many of the conditions giving rise to departure and displacement through economic assistance and a global approach to conflict resolution and economic/ecological crises.
- Can American or Equivalent Responsible Global Leadership be Restored or Enhanced? The 2020 US elections may overcome the current global leadership vacuum if a more internationally oriented American president is elected, especially if the new leader values international law, the UN, and human rights, and is sensitive to the importance of international cooperative given ecological imperatives. It is also possible that other configurations of responsible global leadership will emerge. China, Russia, the EU each could help restore current leadership responsive to global challenges either by their individual initiative or in a collaborative relationship. Trump self-consciously relinquished the non-militarist sides of America’s prior leadership role, proclaiming that he was elected president of the United States, not the world. The future of international human rights depends on benevolent global leadership.
- Will the deepening Ecological Crisis give rise to more Effective Global Governance? In effect, will the increasing evidence of deteriorating ecological stability resulting from global warming, diminished biodiversity, and other signs of disharmony between human activity and the natural surrounding act as a wakeup call for the elites and publics of the world, inducing an atmosphere of urgency that includes vesting greater authority in international institutions and an international framework of environmental regulation? So far, the reactions have been dominated by short-termism accompanied by denialism and escapism, with the default option being technological innovation when the situation impinges to an extent that can no longer be denied. As a consequence human rights are weakened, especially in relation to the right to life and health.
- Will the Prominence of Post-Human Scenarios hasten the Recognition of a Bio-Ethical Crisis? We are increasingly confronted by end-of-the-world scenarios based on the occurrence of a variety of apocalyptic events or assessments that the planet is on its way to becoming uninhabitable. Will this reality of bio-eco-ethical-spiritual crisis lead to the formulation of new radical thought and political movement responsive to the challenges, reflecting the recognition that present modes of problem-solving and policy-making are not capable of providing adequate responses?
- Can Capitalism be Reformed Sufficiently to be Reconciled with Humane Global Governance? To address the adverse trends it will be necessary, at minimum, to evolve a more regulated world economy that is sensitive to ethical and ecological considerations. This requires limits on profitability, consumerism, and environmental disregard, including on release of greenhouse gasses. It may be that some fusion of capitalism and socialism would be alone capable of preserving the autonomies of the private sectors with the responsibilities to uphold human rights, including rights of the unborn. This could happen as the extreme inequalities of income and wealth create a public mood seeking a more equitable and sustainable brand of economic development more in accord with the norms contained in the International Covenant of Economic, Social and Cultural Rights.
- Does a Positive Future for Humanity Depend on a Politics of Impossibility? The present world situation suggests two points of attention: a series of dystopian trends as offset by the realization that only utopian solutions can bring relief and nurture hope. Politics as the art of the possible seems very inadequate as response to the challenges facing a human rights culture except to lengthen the interval available for adjustments, but this will fall short both of what is needed and what is desirable. To meet needs and satisfy desires depends then on the emergence and embrace of ‘a politics of impossibility.’ It is important to recognize that what seems impossible happens—for instance, the collapse of worldwide European colonialism, the transformation of the South African apartheid regime, the collapse of the Soviet Union, the attainment of gay rights in many settings. The impossible happens when enough people insist through thought, action, and faith that it must happen. Change of this fundamental sort comes from below in unpredicted surges, which themselves constitute responses to populist discontent and struggle.
The main objective of this essay is to sketch the profound challenges to human rights that arise from a series of interrelated and overlapping developments, and to give some sense that to restore and enhance human rights is a difficult undertaking that now seems almost impossible given the ultra-nationalist outlook of the governments of most leading states. Yet the future is uncertain, and will be influenced by what peoples variously situated choose to do or refrain from doing. Under these conditions of menace and uncertainty there is every reason to struggle for what is necessary and desirable even if it seems presently impossible of attainment.
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB, author, co-author or editor of 40 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation. His most recent book is Achieving Human Rights (2009).
Tags: Human Rights, Indigenous Rights, Justice, Social justice, Solutions
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