Rescuing Human Rights: A Radically Moderate Approach

| March 24, 2020
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Rescuing Human Rights: A Radically Moderate Approach, Hurst Hannum (Cambridge, U.K.: Cambridge University Press, 2019), 240 pp., $89.99 cloth, $32.99 paper, $26 eBook.

With the adoption of the Universal Declaration of Human Rights in 1948 and the ratification of the nine core international human rights treaties over the subsequent six decades, human rights are no longer a simple matter of internal state affairs. Human rights limit the sovereignty and rights of states. In Rescuing Human Rights, Hurst Hannum posits that this revolution in the international legal system is today threatened by the expansion of the concept of human rights to include many issues and concerns not contemplated by the founders of the Universal Declaration of Human Rights, or UDHR. This evolution and expansion includes many worthwhile and admirable goals that nonetheless have undermined and threatened the universal consensus regarding states’ legal obligations. Hannum thus proposes a “radically moderate” approach to the revitalization of human rights in order to rescue it from overuse that could lead to its irrelevance. This approach requires what he argues is a return to the original meaning and consensus of the foundational texts of international human rights law.

Chapters 2 through 9 outline the problem with advocates using human rights to effect social and political change. Human rights, Hannum argues, were not intended by the founders of the original human rights documents to establish a just society, prosecute criminals, protect the environment, or eradicate poverty. The failure of the human rights framework to protect these social goods that cannot rightly be classified as human rights provides ample evidence for critics to disparage and delegitimize the human rights project altogether. In support of it, Hannum provides sound rationales for why these otherwise worthy goals cannot be fulfilled by simply making use of human rights rhetoric. For example, in chapter 2, he cautions against confusing a state’s violation of human rights protections with the commission of crimes. Human rights and international criminal justice, particularly in the creation of the International Criminal Court, are two interrelated but separate concepts. Given the historical association between human rights and criminal justice, it is understandable for political leaders, journalists, advocates, and the general public to believe that the terms are complementary or even interchangeable. After all, the Nuremburg trials, the Convention on the Prevention and Punishment of the Crime of Genocide, and the UDHR were all outcomes of the atrocities of the Holocaust during World War II. The International Criminal Court, however, is not intended to hear general cases of human rights violations; its jurisdiction is limited to genocide, war crimes, and crimes against humanity. Thankfully, most incidents of human rights violations do not rise to that level. Hannum’s argument, is, in part, well taken.

Just as human rights should not be expanded to secure other worthy goals lest they lose consensus among states, they also, according to Hannum, cannot be secured by expanding the responsibility to protect to nonstate actors. Enthusiastic human rights advocates “often find it easier to go after softer, more readily identifiable targets rather than amorphous ‘government’ in all of its complexity” (p. 26). Although businesses, NGOs, and civil society may have a responsibility to respect human rights, only the state has a duty to protect against human rights abuses under international human rights law. Hannum, relying on the extensive findings of John Ruggie, the UN’s former special representative of the secretary-general on business and human rights from 2005 to 2011, argues that, by placing human rights obligations on nonstate actors, advocates are undermining efforts to make governments more accountable to their own citizenry (chapter 3). Human rights “articulate a minimum standard for the relationship between individuals and their governments” (p. 10), and governments, not nonstate actors, are obligated to respect and ensure the human rights of their citizens. Nonstate actors do not have the power or authority to negotiate, sign, or ratify human rights treaties, and thus do not have the equivalent responsibility to ensure human rights.

In chapter 6, Hannum argues that because each component of the International Bill of Human Rights prohibits discrimination and promotes equal rights for men and women, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) undermines rather than bolsters the cause of human rights. CEDAW attempts to provide protection for women’s rights in the sphere where they are most vulnerable: the private sphere. To do so, the convention “deliberately ignores the distinction between public and private life and adopts an all-encompassing vision of equality between men and women that,” in Hannum’s opinion, “demands not just equal results but special treatment to ‘modify social and cultural patterns of conduct’” (pp. 82–83). On this point, I would argue that it is worth noting that the state already profoundly regulates aspects of the private sphere through procedures such as requiring marriage licenses, issuing birth certificates, offering tax deductions for children, and the provision or denial of social benefits such as maternity leave and child care. Women’s rights sadly remain controversial and contentious, lacking universal consensus (189 states have ratified CEDAW, but many have maintained reservations). Hannum therefore fears that “a focus on what are seen by many cultures as particularly ‘Western’ rights, such as the rejection of gender stereotypes, advocacy of same-sex marriage . . . may undermine efforts to guarantee or restore equally important rights on which one may be able to find a wider degree of agreement” (p. 103). Here the reader is left to assume that Hannum means agreement over public sphere male-focused rights.

In addition to this somewhat dubious assessment of women’s rights, there is another significant overall weakness in Hannum’s argument. It goes back to his basic premise that the human rights project has expanded such that it has squandered the universal consensus that it once enjoyed. And yet, Hannum tells us that “as of January 2018, more than 165 [states] had ratified the two core conventions on civil and political rights and economic, social, and cultural rights, respectively; 179 states had ratified the Convention on the Elimination of all Forms of Racial Discrimination; 189 had ratified the Convention on the Elimination of All Forms of Discrimination against Women; and 196 states had ratified the Convention on the Rights of the Child” (p. 2). So, somewhat confusingly, even though the hard-law human rights treaties that have been signed post-1980 have a greater number of ratifying states, they, according to Hannum, lack the universality and consensus “that were at the heart of human rights at least through the 1970s” (p. 4). By universality and consensus, Hannum is referring to the universality and consensus in the establishment of the International Bill of Human Rights.

But here is the complicated reality: there has never been universal agreement on human rights law. It has always been contentious. With states’ inclination and ability to attach reservations, understandings, and declarations (RUDs) to their acceptance of a treaty, human rights law provides neither universality nor isonomy in its application and implementation. Even the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have their share of reservations. Yet, Hannum does not consider the treaty modifications imposed as a result of states’ reservations until chapter 7, and then only briefly to praise them for “enabl[ing] states to adapt universal human rights norms to specific local conditions” (p. 97). By the end of the book, he touts his restrained interpretation of fundamental human rights, suggesting that they should only “include all of the civil, cultural, economic, political, and social rights contained in the two covenants” (p. 164). The implication is that the seven other core international human rights instruments distract from universal, fundamental, and essential human rights. And that the other core documents seek not to protect human rights, but to recreate or reorder society and further nonrights issues. This is a misguided and misleading interpretation. The idea that these core human rights documents, which are heavily ratified, do not indicate consensus, is perplexing.

Regardless of the above critiques, the power of this book is that it asks dyed-in-the-wool human rights advocates and teachers, such as myself, to rethink, reevaluate, and reconsider our assumptions and conjectures regarding human rights. There is much over which to argue. Hannum presents an important warning for human rights advocates, lawyers, teachers, and researchers: “Expanding the formal scope of human rights is likely only to distract from the woefully unfinished task of protecting existing rights” (p. 158). This is a warning that must be given careful consideration if human rights are to endure in the foreseeable future.

—Clair Apodaca

Clair Apodaca is an associate professor in the Department of Political Science at Virginia Tech. She is the author of four books, including, most recently, Human Rights and U.S. Foreign Policy: Prevarications and Evasions (2019), along with over two dozen articles and book chapters on global human rights published in some of the most prestigious scholarly journals in the field.
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Category: Book Review, Issue 34.1

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