30 Sep On Human Rights “backsliding”

I spent the better part of this morning reading a paper (as yet unpublished) by Andrew T. Guzman and Katerina Linos (both of Berkeley Law) titled “Human Rights Backsliding” and then attending a talk by the same name (i don’t know if i have permission to link to the paper, so please excuse its absence). At root of their argument is an overarching model that seeks to explain the causes of “backsliding” in human rights. The main thesis is that (1) only those countries already near a norm (whether high or low) will edge toward it with the adoption of new norms; and (2) that those who exceed the norm (deemed “top performers” – a distinction that was not defined) as articulated either by human rights courts or through documents (treaties, protocols, etc) tend to backslide when they ratify new international human rights treaties [whose norms are lower than their already-existing laws].

The paper included three examples. The first was of the diminishment of hearsay protections in English courts following the adoption of the ECHR charter (timely enough, David Cameron just announced today that UK will be cutting ties with the ECHR if he is re-elected). The second is the mobilization of the lack of human rights norm for same sex marriage in the US and UK (see for instance, Ronald Holzhacker’s paper). And the third is the diminishment of “women’s rights” in Sweden in relation to maternity leave upon entry into the EU (well, actually with the 1992 EU Pregnant Workers directive).

The authors also include some lovely graphics which appear to illustrate their point with curves and lines and more dotted lines and moving targets and arrows. Very simplified, very tidy. I’m always a bit suspicious of seemingly quantitative illustrations that (a) leave out any input / output data; and (b) are meant to illustrate a set of assumptions based on a few empirical examples. I went in to the talk with one set of questions and emerged with another set.

My main concern has to do with how very domestic policy-oriented the paper is. Mostly, i was surprised that this was an overall model of expected outcomes when faced with norms, but only insofar as it related to domestic policy. On the one hand, there is an insistence on the importance of both domestic and international pressures in the adoption of international human rights norms, and yet the analysis of the enactment of them is purely domestic – as if countries exist as containers in and of themselves whose only measure of human rights matters within its borders. And if there is an interest in external pressures, then what of continual human right abuses enacted by proxy? I’m thinking, of course, of U.S. interventions in Haiti’s politics. In the 80’s and 90’s, as Haiti edged closer and closer to becoming a democracy, the U.S. (and, to be fair, transnational and international organizations, as well, to some degree) stepped in to rearrange the political landscape in increasingly invasive ways. On the one hand, where was the international pressure to stop the U.S. from disrupting an emerging democratic government? On the other hand, where are these moments of international pressure away from, or against, human rights development in their analysis?

More pointedly, what of the rest of Latin America and the Caribbean? How does this model fit with repeated interjections and orchestrated overthrows of progressively democratic governments?

To be fair, the paper did not include a time frame. Given that one might easily assume, as most scholars of human rights do, that international interest in and mobilization of human rights has increased immensely in the years since September 11, 2001, and therefore sits as a natural marker for any theory of change, then lets start there. Haiti still stands (see: second U.S.-orchestrated overthrow of Aristide – admittedly, this time under the guise of protecting human rights). But the major geographical focus shifts eastward – toward the newly disassembled Soviet Union, the newly emerging BRIC, and, of course, the ever-shifting “Arab world.” This brings, in fact, ever newer questions regarding international human rights to bear, such as issues of torture, the suspension of Habeus Corpus, the PATRIOT Act, etc. One could, of course, trot out the “American Exceptionalism” argument, i suppose. But so long as we continue to presume that these are exceptional times with exceptional legal somersaults, then we fail to acknowledge that nothing is exceptional about the continual degradation of human rights advancements (however contested and uneven they may have been or be) in the U.S.

Beyond simply the U.S.’s foreign and domestic policies regarding human rights, there is, also, the question of human rights and peacekeeping operations. I am thinking, of course of MINUSTAH in Haiti and MONUSCO in Congo. What of their “backsliding”? Are they figured into these tidy graphics?

But perhaps more concerning for me was a general lack of nuance. As another attendee asked, “Where is the acknowledgement of the complexity of politics and policy?” The response was simply that this model is dependent on informing policy through simplification. There was an eschewing of “complexity” more generally, as Guzman explained, “We have to simplify, and [the question is] have we done it well?” In a moment, the conversation was dead.

It was quite an a-ha moment for me. All of the writing and re-writing, and researching for my questions (that i never actually asked) didn’t mean anything. If, in a sentence, the entirety of geography can be erased for the object of simplification for policy, then where do we meet? This is a question i have been asking myself and discussing with my colleague, Ryan Burns, quite a bit, lately. We have been trying to write a CFP for the PGSG pre-AAG conference in April, hoping to bring together practitioners and academics of humanitarianism. We are interested in finding common ground, for understanding our place in practice – what is our role? What do we have to offer? or do we?

I recently attended a talk by Jan Zielonka about the state of the European Union. During the Q&A, a student asked, “What’s the solution [to the fragmentation of the EU]?” He laughed and said, “If i had a solution, i would be a politician. I’m not, i’m an academic.” I loved his honesty. As he pointed out, politicians are act’ers – they have to act and act now. They move forward in increments toward something. Academics — we watch, we engage, we discuss, we help to critique in what we hope are helpful ways so that eventually there will be a move toward better. But what happens when the response to that level of critique is simply, “There is no place for complexity in our policy paper”? Has the conversation been shut down? Is it forgone before it’s begun?