Human Rights and Human Rights Politics

Abstract

Human rights are a topical issue. But what are human rights and what are their characteristics? Without a doubt, they are particularly fundamental rights. They aim to protect the dignity of every individual and to enable everyone to live a free, self-determined and dignified life in community with others, “free from fear and want” (as the preamble to the Universal Declaration of Human Rights of 1948 puts it). In this context, “self-determined” does not mean isolated from others, but rather in a responsible manner, also towards others. Human rights are indeed rights to which every individual is entitled, and which are to be respected; in this regard they are individual rights. However, they are not purely “individualistic” rights. Rather, human rights are exercised collectively and are oriented towards living together and towards a political order in which all people are not (any longer) excluded and oppressed but can develop together with others. In this sense, they are not “egoistic”, but demonstrate a “communitarian dimension” and as such are oriented towards the community.

1.1 What Are Human Rights?

Human rights are a topical issue. But what are human rights and what are their characteristics? Without a doubt, they are particularly fundamental rights. They aim to protect the dignity of every individual and to enable everyone to live a free, self-determined and dignified life in community with others, “free from fear and want” (as the preamble to the Universal Declaration of Human Rights of 1948 puts it). In this context, “self-determined” does not mean isolated from others, but rather in a responsible manner, also towards others. Human rights are indeed rights to which every individual is entitled, and which are to be respected; in this regard they are individual rights. However, they are not purely “individualistic” rights. Rather, human rights are exercised collectively¹ and are oriented towards living together and towards a political order in which all people are not (any longer) excluded and oppressed but can develop together with others. In this sense, they are not “egoistic”, but demonstrate a “communitarian dimension” and as such are oriented towards the community.

A characteristic of human rights is that they should apply to every human being without exception, i.e. universally. Going beyond specific contexts, they describe a basic set of rights to which every individual human being is fundamentally entitled on the basis of his or her humanity, and that in equal measure. The strict postulate of human rights equality in the sense of a fundamental equivalence and equality of all human beings is inherent in human rights.² It takes the form of a “conceptual axiom” (Pollmann 2022, p. 102) that can no longer be justified itself but also cannot be abandoned when speaking about human rights. However, the idea of equality first had to (and still has to) assert itself within the human rights discourse against persistent forms of legal and de facto inequality,

… and this in the course of political struggles for progressive ‘non-discrimination’, which is thus not merely to be understood as the inclusion of more and more people in the circle of those to whom human rights apply, but also as their successive equality (Pollmann 2022, p. 101, own translation).

Human rights are indivisible and interdependent: they form a complex of interrelated rights. Civil, political, economic, social and cultural human rights are mutually dependent and inseparable. The times when social human rights were dismissed as only political declarations of intent and not “real” human rights are over, at the latest since the 1993 Vienna World Conference on Human Rights and the subsequent increased importance of these rights³ (see Krennerich 2013). The Table 1.1 lists the human rights of the two basic UN human rights conventions of 1966 (in force since 1976). With few exceptions (right to property, right to seek asylum), they transposed the rights of the 1948 Universal Declaration of Human Rights into two international treaties. The other UN human rights conventions are based on the UDHR and the two covenants (see Chap. 5).

Table 1.1 Rights of the basis Human Rights Covenants

Human rights are complex rights that have legal, moral and political dimensions. From a moral point of view, human rights are, in principle, addressed at all human beings, as a mutual moral obligation of all and as a moral aspiration of every human being to respect human rights in living together. The rich philosophical debate in this regard shows that human rights, as particularly fundamental moral aspirations, can be accessible to different derivations, determinations and justifications, for example of a theological, natural law, anthropological or contractualist nature, or as a demand of practical reason. These can also be examined to see whether and to what extent they can justify the universal, egalitarian and categorical aspiration of human rights being a “morality of universal respect for all” (Lohmann 2010, p. 138).

As purely moral aspirations, human rights remain dependent on being recognised and observed as binding for moral reasons. In terms of enforceability, they are therefore rather “weak rights” for the time being. The respective method of assertion is appellative. By means of moral suasion, corresponding obligations and entitlements can be demanded and asserted—and their non-observance can be morally sanctioned, for example by means of shaming (Lohmann 2010, pp. 141–142).

The legal dimension of human rights, on the other hand, is visibly expressed primarily in the form of human rights treaties that are binding under public international law. With the positive legal enshrinement of human rights, the focus shifts to the states as the primary duty bearers. This makes sense insofar as the state can be both a threat to and a guarantor of human rights. Formally, the state-centredness also results from the fact that international law is primarily a law of states. In the form of international human rights treaties, states within the framework of international organisations mutually undertake to respect, protect and guarantee the human rights of all those people who live in their sovereign territory or are subject to their jurisdiction. In addition, there are “extraterritorial” human rights obligations.⁴ If human rights are also incorporated into national constitutions as fundamental rights, they directly bind the state authorities and the exercise of state authority. Fundamental rights primarily affect the relationship between the state and individuals (and indirectly also between private individuals).

As juridical rights, in general human rights are gaining in binding force and assertive power. However, the international community has equipped international human rights protection with only weak legal enforcement instruments. International law is essentially a coordinating law that depends on the cooperation of states. Effective means of coercion and enforcement comparable to national law do not even exist where regional human rights courts pronounce binding legal judgements. It is therefore all the more important that international human rights conventions are enforced in national law and that human rights, where they are not yet enshrined, are adopted or transformed into national law, preferably in the form of fundamental rights in national constitutions. Under the terms of functioning constitutional states, the rights can then be enforced in court. However, it is precisely when constitutional states fail or there are gaps in national human rights protection that the institutions and procedures of regional and international human rights protection come into play.

The moral and legal dimensions of human rights are closely interwoven. On the one hand, morally derived and justified human rights are ideally respected and protected by the state in the form of positive law, i.e. they are subject to safeguarding through legal institutions. On the other hand, human rights also have an “intrinsic authority” (Bielefeldt 2022, p. 6) that precedes the legal standard setting. At the same time, juridical rights also require normative justifications that go beyond the mere reference to the validity of legal documents. Precisely because human rights enshrined in international law are supposed to be universal rights that apply equally to all people, there is a particular need for their acceptance and justification. The moral and juridical dimensions of human rights can also complement and correct each other. Thus, justified and well-founded moral demands can affect the enshrinement of new human rights or the (re)interpretation and implementation of already codified human rights. Conversely, positively enshrined fundamental and human rights can constitute a protection against invasive moral aspirations.

1.2 The Political Nature of Human Rights

Human rights are political in particular because politics and the state are the primary addressees of human rights entitlements and obligations. In contrast to the moral addressing of all people (as is typical in human rights education), political conceptions of human rights primarily place responsibility on state authorities and state officials. Human rights go hand in hand with the requirement that the political establishment allows and enables individuals to access the freedoms and resources formulated in human rights law (Kreide 2013, p. 93). In this sense, “(h)uman rights law is inherently political, and takes place in processes of struggle to achieve, control and distribute resources in society” (Andreassen 2023, p. 24).

Human rights are political precisely because they emerged from publicly articulated experiences of injustice (Bielefeldt 2006) and as such are the result of political struggles in reaction to oppression, humiliation and arbitrary state power. At the same time, human rights are subject to change and must be continually politically readopted and defended against sceptics. Empirically, the establishment, (re)interpretation and implementation of human rights are embedded in often conflictual political processes.

Thus, the legal enshrinement of human rights is already an intrinsically political process. The current “human rights catalogues”, as found in the Universal Declaration of Human Rights (UDHR) and the international human rights treaties based on it, were developed within the framework of the United Nations and negotiated between state representatives—influenced to a greater or lesser extent by individual persons, affected groups, civil society organisations and the specialist and public discourse of the time.⁵ The elaboration and further development of human rights has been and continues to be influenced by ideological and constitutional traditions as well as by concrete historical experiences of oppression and hardship and the emancipation efforts of disadvantaged groups. At the same time, however, the human rights treaties also reflect social and inter-state power relations as well as nation-state interests that influenced which human rights were included and how they were formulated. The historical contingency of individual human rights formulations is undeniable.

The entrenchment and development of human rights in international law are thus the result of political processes at specific points in time in history, though the development is still ongoing. Even when norm-setting processes are far advanced, the “catalogue” of human rights can be amended and expanded. For example, numerous human rights treaties have been drafted that differentiate the rights enshrined in the UDHR and make them more specific to particular population groups (women, children, people with disabilities, migrant workers) and human rights problems (racism, torture, forced disappearances). In principle, it can be assumed that new experiences of injustice and changes in human living conditions and social relations—for example through climate change, global refugee and migration movements, genetic engineering, digitalisation and artificial intelligence—can also give rise to new human rights in the future. This is especially true if it is accompanied by criticism of the inadequacies of existing human rights protection. For example, a legally binding document to strengthen the human rights of older persons, a UN Convention on the Rights of Older Persons, has been the subject of controversial discussions in an open UN working group since 2011. Also, in 2018, the UN Human Rights Council instructed the existing Open-ended Working Group on the Right to Development to begin consultations on drafting an international legal agreement on the right to development, which has been discussed for many decades.⁶

It should also be noted that human rights declarations and agreements are “living instruments”. Even though these human rights documents are recognisably “children of their time”, human rights were formulated in such a general way that their validity goes far beyond the historical contexts of their origin and is fundamentally open to changing interpretations.⁷ Thus, many international legal and political debates currently revolve less around the establishment of new human rights than around a contemporary, context-sensitive interpretation of existing legal norms. This is clearly visible, for example, in the interpretation of economic, social and cultural human rights, which has changed considerably over the past 30 years (Krennerich 2013). The prohibition of discrimination has also seen considerable change. Despite all the persecution and counter-movements in some parts of the world, there has been significant progress in the legal situation of lesbian, gay, bisexual, trans*, inter* and queer (LGBTIQ+) persons in recent decades, for example. There is also now greater sensitivity to complex forms of intersectional discrimination (Crenshaw 1989). At the same time, voids in the postcolonial discourse have been brought to light regarding the treatment of colonial crimes and their consequences.

Thus, the interpretation of human rights is not a purely legal undertaking, but always part of socio-political debates about what can legitimately be demanded in terms of human rights, who is bound by human rights and in what way. This is also where discussions about “extraterritorial obligation” of states or about the human rights responsibility of non-state actors⁸ such as business enterprises⁹ come in. The political discourse on human rights thus no longer only focuses on the politics of nation states, but also deals with structures of power, dependency and oppression at the non-state and transnational levels that prevent or impede the use of human rights.

Against the backdrop of the climate crisis, there is even a new discussion about who the subjects, i.e. the holders of human rights, are. Here, we not only need to address the now virulent question to what extent all those people who irreversibly lose their national territory due to climate change (e.g. Tuvalu), or whose territory is temporarily uninhabitable, can assert their human rights and against whom. In view of the climate crisis, it must also be clarified above all whether future generations will be recognised as legal subjects and what the relationship is between their rights and the human rights of the present generations. The Maastricht Principles of Human Rights for Future Generations (2023) seek to clarify the present state of international law as it applies to the human rights of future generations.¹⁰ In the face of environmental degradation and climate change, the question as to whether human rights should only apply to human beings has also been raised. What about the rights of other living beings? And, as has been successfully argued in court in the case of some strategic lawsuits, should the rights of nature also be recognised? So, do the existing human rights constitute an undue privileging of the human species to the detriment of other living beings, as some critics claim?

At the same time, already established human rights entitlements, such as the non-discrimination of LGBTIQ+ persons, repeatedly encounter resistance between and within the respective states. Therefore, no matter how much a basic understanding of the content of individual human rights may have developed, it is not sufficient for international human rights monitoring bodies to provide interpretation guidelines. Precisely because human rights, in the sense of universality, should apply to every human being, it is necessary to repeatedly substantiate human rights and ensure their plausibility in intercultural political dialogue, so that over and above their binding force under international law they are granted actual political and social recognition in individual states.

Such recognition is ultimately also the prerequisite for the implementation of human rights in the respective states. These are highly political, often conflict-laden processes. International human rights law

… requires struggles by civic and political actors for holding governments to account for their human rights commitments and opposing and criticizing authoritian rule as a political act that challenges power, ideology and state conduct (Andreassen 2023, p. 1).

Human rights are not only obtained through legal means. Despite the importance of judicial protection and strategic litigation, fundamental reforms aimed at better and more comprehensive protection of human rights are always politically contested, decided and implemented, since they involve power, distribution questions, changes in attitudes and mind maps, and ideally political recognition and learning processes. Collective action by social and political actors is always needed so that experiences of injustice and emancipation efforts are expressed in human rights policy demands and, if necessary, lead to norm setting, norm interpretation and norm implementation. At the same time, the political commitment to human rights also requires institutional support through codified law as well as through institutions and procedures for the protection and implementation of human rights. No less necessary are the foundation and practising of human rights in politics and society.

The focus of this book is now on the political processes of demanding, interpreting and implementing the human rights enshrined in international law. It should be remembered, however, that it is precisely through their moral and legal foundations that they gain persuasive and assertive power.

1.3 What Is Human Rights Politics? A Conceptual Approach

While human rights are the subject of countless attempts to define them, there are hardly any definitions of human rights politics. Broadly speaking, human rights politics can be understood as political action at the local, national, regional and global levels aimed at enshrining, interpreting, implementing, protecting and promoting human rights. At the centre of current human rights politics are the civil, political, economic, social and cultural human rights guaranteed in international human rights conventions, which must be respected, protected and fulfilled. Human rights politics refers both to the shaping, further development and interpretation of universal human rights norms and to their enforcement and implementation.

Included are all three political dimensions, which are semantically distinguished in political science with the terms polity, politics and policy, but which are intertwined in political practice: the legal-institutional foundations of human rights politics (polity); the often conflict-ridden process of political decision-making, i.e. the shaping of human rights policy, in which a multitude of (collective) actors participate (politics); finally, the human rights policy content and policy outcomes, for example legislative, administrative, educational and other measures that serve the protection and promotion of human rights in the individual branches (policies).

Political action is by no means limited to state actors. It is true that states have the main legal responsibility for the implementation and promotion of human rights, and that the international human rights system is primarily based on the political cooperation between states under international law. However, it is widely recognised that non-governmental human rights organisations, networks and movements are an essential driving force behind national and transnational human rights protection. However, assessments of their importance in relation to the human rights politics of states and international organisations differ considerably, and also depend on basic theoretical assumptions. Liberal and social constructivist approaches in the field of international relations, for example, tend to assign greater importance to non-state actors than (neo)institutionalist and certainly realpolitik approaches. Ultimately, however, the question which actors particularly drive forward human rights political processes at which stage is one that needs to be empirically examined. In this context, it is important to recognise that it is precisely the interaction of non-state actors, governments committed to human rights and international organisations that is significant for human rights protection.

Furthermore, non-governmental human rights organisations and networks have not only considerable influence on domestic and international human rights policics—for example through criticism, protests, lobbying and consultation. They also take independent measures to protect and promote human rights. As will be shown later, these also include the strengthening of human rights empowerment and concrete support for affected groups and human rights defenders. Non-state actors also have a significant impact on the public discourse on human rights, which in many respects forms the context in which state and non-state human rights policies unfold.

Thus, a high degree of political discursivity is inherent in human rights and human rights politics, which helps to determine the content, scope and limits of human rights and to provide argumentative support and legitimacy for human rights polical action. According to a broad understanding of politics, this discourse is even a fundamental component of human rights politics. Particularly from the point of view of deliberative democracy, informed, argumentative and agreement-oriented forms of political communication between (also morally) competent citizens are fundamental for democratic human rights politics.

Ultimately, the inherent, structural characteristics of universal human rights, specifically freedom, equality and inclusion/solidarity, determine the normative requirements for the shaping of human rights politics in legal-institutional, procedural and substantive terms. Freedom-restricting, particularistic, discriminatory and exclusionary norms, practices and measures cannot be reconciled with the normative demands on human rights politics. Thus, for example, anyone who demands human rights only for a particular group but excludes other people (groups) from making use of them, cannot invoke human rights in that case. To put it bluntly: human rights are supposed to apply equally to everybody as otherwise they are not human rights. This does not exclude the possibility that universal human rights must be specifically developed for certain persons (groups), such as persons with disabilities, so that they can actually make use of them.

Authentic human rights policy is also characterised by the fact that it actually aims at the recognition and implementation of human rights. It thus distinguishes itself from policies that only pretend to protect human rights. However, the boundaries are not always easy to draw, since human rights concerns can also overlap with other interests and there are time and again (also successful) attempts to misuse human rights for purposes that deviate from or are contrary to human rights, such as, in extreme cases, for imperalistic power politics. In contrast to the narrow understanding of human rights politics that I have proposed, a broad concept of human rights politics could thus encompass any political action that has human rights as its object, even if it is not really aimed at implementing human rights. In the context of this book, however, human rights politics in a narrow, normatively discriminating sense is defined as follows:

Definition of Human Rights Politics

Human rights politics is the totality of—discursively and argumentatively supported—legal-institutional (polity), procedural (politics) and substantive (policy) aspects of political action by international organisations as well as governmental and non-governmental actors, which aim to enshrine, interpret, implement and promote universal human rights with their charactereristics of freedom, equality and solidarity. Human rights politics takes place at the local, national, regional and global level.

1.4 The Study of Human Rights and Human Rights Politics

The study of human rights benefits greatly from a multi- and interdisciplinary approach. Legal handbooks, commentaries and studies on human rights are still the predominant source. The focus is on the legal doctrinal interpretation of the relevant legal texts and the case law of relevant legal institutions, such as the European, Inter-American or African Court of Human Rights, or the monitoring bodies of the United Nations. However, the philosophical debate on human rights also bears rich fruit, especially with regard to the creation, definition and interpretation of human rights. Furthermore, there are many social science studies on the subject. Human rights politics are particularly suitable, it can be assumed, to be studied as part of political science. Even at first glance, there are many points of reference to the traditional sub-fields of political science, which have been important for the development of this now highly differentiated subject.

Here, for example, the sub-field of Political Theory should be mentioned. Particularly normative theories of politics play a role when it comes to the meaning and interpretation of human rights and the critical, intercultural dialogue on human rights, especially when they explicitly deal with human rights. This is shown not least by the lively debate on the universality of human rights. In socio-political discourse, for example, it is necessary to counter religious and cultural relativist objections. Feminist, anti-neoliberal and postcolonial critiques of human rights must also be taken into account, and the extent to which they can challenge the traditional understanding of human rights and contribute to formulating and advancing human rights as an ambitious political project must be examined. Furthermore, theorists can provide important normative orientation for practical human rights politics, especially if they succeed in identifying the basic principles in concrete policies and problematising them in an application-oriented way.

In the sub-field of International Relations, on the other hand, the respective schools of theory and the diverse empirical studies on international and transnational politics can contribute to a better understanding of human rights politics. For example, do human rights, as the view of (neo-)realism suggests, only come into play internationally, if at all, when they coincide with power-political interests, or when they are linked to effective sanctions and incentives? And to what extent is hard power linked to soft power, such as the moral authority of a government or the political-cultural appeal of a country? Is an active human rights policy—in the sense of liberal schools of thought—an expression of the democratic character and the human rights commitment of states? It is possible that the liberal-democratic nature of state, politics and society plays an important role for the observance of human rights, not only at home, but also in foreign relations. The question then arises to what extent those groups within society that stand up for human rights also exert influence on the shaping of foreign policy. Or are human rights observed because the behavioural expectations created within the framework of international human rights regimes are met and governments have already internalised and habitualised behaviour that conforms to human rights? Then, in the sense of constructivist views, rather the “logic of appropriateness” than that of the “logic of instrumental rationality” applies.

The dual character of the state as both a guarantor of and a threat to human rights also suggests the importance of case-by-case or comparative analyses of political systems for the study of human rights and human rights politics. Despite all globalisation processes, the nation state still plays the central role in respecting, protecting and guaranteeing human rights. The sub-fields of Political Systems or Comparative Politics therefore offer a variety of starting points for empirical studies, for example on the causes and consequences of human rights violations in the respective countries. At the same time, they provide analytical tools to explain the shaping of human rights politics and to record the effects. Particularly when comparing countries, it is possible to ask under which conditions human rights protection is effective or fails. How such comparisons are made depends very much on the research interest and the methodological approach. Depending on the level of analysis, it is possible, for example, to look at types of political regime, the relationship between state and society, or the behaviour of actors in the context of concrete political processes and conflicts. Moreover, Policy Analysis approaches can be used to study the measures undertaken and policies applied in each case.

Thanks to the cross-sectional character of human rights politics, there are also many fields of research within and outside (the traditional sub-fields) of political science that are already being academically “ploughed through”. For example, comparative research on violence has been dealing with human rights for a long time. Questions of national security and counterterrorism have also been the focus of human rights studies at the latest since the attacks of 11th September 2001 in the USA. In view of the sharp increase in the number of refugees—and the deaths of thousands of refugees in the Mediterranean and elsewhere—asylum and refugee policy is also being discussed from a human rights perspective. The thematic area of “business and human rights” in turn raises questions regarding the regulation of economic globalisation processes and transnational corporations. Feminist and LGBTIQ+ perspectives as well as the socio-political debates on racism and postcolonialism have provided important impulses for theoretical and empirical studies. They may also contribute to a revival of critical political science,¹¹ which, in addition to class, now increasingly includes race and gender as points of reference for a critical analysis of society, and advocates values-based research. Last but not least, there are links to political sociology and the study of social protest movements. Particular emphasis is placed on this field in the present book insofar as it deals specifically with the significance of civil society engagement.