State Domestic Human Rights Politics: The Implementation of Human Rights at Home

Abstract

States bear the main responsibility for the implementation of human rights. In the form of international human rights treaties, they undertake to implement the human rights of the people under their sovereign jurisdiction. Even at first glance, the “Janus face” of the state becomes clear: it is both a (potential) violator and a (necessary) guarantor of human rights. It follows that the state must not violate human rights itself and must at the same time protect and promote them. According to recent developments in the dogmatics of international law, human rights therefore constitute state obligations to respect, to protect and to fulfil.

3.1 State Obligations

States bear the main responsibility for the implementation of human rights. In the form of international human rights treaties, they undertake to implement the human rights of the people under their sovereign jurisdiction. Even at first glance, the “Janus face” of the state becomes clear: it is both a (potential) violator and a (necessary) guarantor of human rights. It follows that the state must not violate human rights itself and must at the same time protect and promote them. According to recent developments in the dogmatics of international law, human rights therefore constitute state obligations to respect, to protect and to fulfil.¹

Obligations to respect oblige states not to directly or indirectly prevent individuals from exercising their human rights—and, where they do, to refrain from the corresponding violations and to remedy their consequences. These are thus primarily negative obligations to refrain, which any state can fulfil, regardless of its resources. Usually, such obligations are formulated primarily in relation to civil and political rights in the sense of “classical” rights of freedom. However, it must be emphasised that economic, social and cultural rights are also rights of freedom that can be violated by state action (Krennerich 2006, 2013).

Obligations to protect consist of the state’s obligation to protect individuals against actual or threatened interference with their human rights by third parties (i.e. non-state, private actors, such as companies). Obligations to protect arise in particular when state agencies (a) are aware of an actual or imminent threat (or should have been aware of it if they had exercised due diligence), (b) despite being aware of it, they do not take appropriate protective measures within the scope of their available resources, and (c) at the same time, countermeasures in conformity with human rights would be possible (Kälin and Künzli 2009, pp. 110–111). When it comes to the question of which measures to take, however, states have a wide margin of appreciation/discretion.

Obligations to fulfil oblige states to enable the widest possible exercise of human rights through active state action. This means creating the legal, institutional, procedural and also material conditions for the implementation of human rights, for example through corresponding laws, institutions, procedures or also state benefits in the form of money, goods or services. Here in particular, states have extensive freedom of action. Thus, human rights are in no way intended to deprive the—ideally democratically legitimised—political institutions of responsibility for their, for example, economic and social policies, provided that targeted and human rights-compliant measures are taken.

In the case of ESC rights, the ICESCR even explicitly allows States Parties to implement their covenant obligations “progressively”. This is appropriate: in view of scarce resources and social grievances that are difficult to overcome worldwide, many aspects of ESC rights obviously cannot be implemented overnight, especially those legal components whose implementation requires extensive state services and long-term action. This is particularly true of the obligations to fulfil. On the other hand, obligations to respect and protect can be realised more quickly, especially since the former require hardly any resources, are primarily obligations to refrain from state interferences, and such obligations are not subject to the reservation of progressive realisation in the first place. But the obligations to fulfil must not be put on the back burner either. The State Party must immediately initiate concrete, targeted measures to progressively implement the rights guaranteed in the Covenant. Resource problems cannot serve as an excuse to remain inactive.

The obligation triad refers in principle to all human rights. On the one hand, it illustrates that ESC rights require not only costly political actions. They are always also rights of defence and protection and as such also establish state duties torespect and protect—something that was neglected for a long time in the conventional debate on ESC rights and is often misunderstood even today.² On the other hand, the obligation triad challenges the traditional view that the implementation of civil and political rights does not require state services and resources.³ Of course, the implementation of these rights does not come without cost, especially since the establishment and maintenance of a functioning state under the rule of law incurs considerable costs. Or to quote Katarina Tomaŝevski (2003, p. 112): “No human right is cost-free” (Table 3.1).

Table 3.1 Human rights obligations of the State

Admittedly, many human rights problems can no longer be tackled by nation-states alone, as powerful non-state actors, such as transnationally active corporations, influence the human rights situation.⁴ And yet, the implementation of human rights still depends to a large extent on the will and ability of states to fulfil their human rights obligations, as well as on the state-granted freedom of rights-holders to assert their rights. It is therefore worth taking a closer look at state human rights politics.

The respective national human rights systems differ considerably, even in liberal democracies. Differences concern the legal-institutional framework as well as the actors of human rights politics and their interactions.⁵ Differences also concern the output: the measures taken to protect and promote human rights. The analysis of highly diverse national human rights systems needs to map these components and furthermore take into account the political context within which human rights politics is (or is not) conducted.

However, an important structural prerequisite must be noted in advance: The implementation of human rights requires a minimum level of statehood. In countries where the state is disintegrating or eroding, it is difficult, if not impossible, to protect human rights at the national level. The ability of state institutions to enact and enforce generally binding legal norms is non-existent or at least severely impaired under such conditions. However, a distinction must be made: Not every loss of state authority culminates in the collapse of the state and civil war. Or, to put it another way: only rarely do conditions prevail such as in Somalia, which experienced a complete collapse of the state in the 1990s. But even if the foundations of the state are not under threat, in many countries there are areas of limited statehood in which state institutions barely function and the law is insufficiently enforced. In such cases, the possibilities to implement human rights obligations are limited. The implementation of human rights is therefore not always a question of will, but also one of ability.

And something else: Endemic corruption undermines human rights, whether this concerns access to social human rights (education, health, food, water, etc.) or, for example, human rights-compliant treatment by the police, the administration or the courts. It affects the whole of society, but vulnerable groups are particularly affected. Where the corruption is widespread and it permeates the state organs, states cannot fulfil their human rights obligations and people cannot assert their rights on an equal footing, certainly not if the corruption has also taken hold of the judiciary. Corruption is not compatible with the idea of equality that underlies human rights. In this sense, endemic corruption and respect for human rights are virtually mutually exclusive (Bielefeldt 2022, p. 129).

3.2 Comprehensive Legal Recognition

States are obliged under international law to implement ratified human rights conventions on their territory. The first step is therefore to check which international and regional human rights treaties have been ratified by the respective states. For example, 55 states have ratified at least 15 of the 18 UN core conventions (including the additional protocols).⁶ Furthermore, it is important to note reservations to human rights treaties, which states can invoke unilaterally in order to clarify the conditions under which the State Party wishes to be bound by the treaty.⁷ In theory, declarations of interpretation are to be distinguished from this, with which a State Party declares how it interprets a certain human rights norm without changing or excluding the norm. In practice, however, the transitions are fluid. Furthermore, it must be examined to what extent the monitoring procedures laid down in the treaties and their additional protocols are legally recognised by the respective states and have legal significance in practice there.

For the question as to the extent to which states fulfil their obligations under ratified international human rights treaties, it is subsequently legally relevant how these treaties are implemented in domestic law. In principle, states are free to “incorporate” international human rights treaties into national law and thus give them direct effect, or to transform their content into national law through legislation, for example by means of substantively identical laws or corresponding approval law (see Kälin and Künzli 2009, p. 186). The rank that international treaties occupy in the domestic norm hierarchy can also differ quite considerably. Human rights treaties can, as in some Latin American states, have constitutional status or even be regarded as part of constitutional law in the sense of a bloque constitucional. However, they can also only have the status of a statute, or they lie somewhere in between in the hierarchy of law, in that they take precedence over ordinary laws, for example, but do not have constitutional status.

It is also important whether and to what extent individuals (in their capacity as rights holders) can invoke the rights enshrined in human rights treaties domestically. This is not mandatory under international law if analogous constitutional guarantees or legal provisions can be invoked domestically (Kälin and Künzli 2009, p. 187). However, it is desirable under human rights law and is repeatedly called for by human rights treaty bodies. The extent to which an individual can directly invoke international human rights law before national courts also depends on the content of the respective legal norm. The legal norm must be sufficiently clearly defined and not require any further acts of implementation. For civil and political human rights, this is widely undisputed, at least in liberal democracies, but often not for economic, social and cultural human rights. Here, therefore, further national legislative acts are usually required—for example, within the framework of labour and social legislation—so that these rights can also be asserted on the national level. Furthermore, the non-observance of justiciable aspects of ESC rights (such as non-discrimination) is also due to the fact that national courts are often not very familiar with human rights treaties that enshrine ESC rights and the interpretation of the rights therein under international law.

No less important, therefore, is the question of whether and to what extent national law—in accordance with obligations under international law—is designed to be human rights compliant⁸ and covers the scope of protection of human rights. In fact, national law is far more accessible to national actors who advocate for human rights on a national level. It is particularly helpful if human rights are entrenched as fundamental rights in the constitution and violations of fundamental rights can be the subject of a constitutional complaint. Here, too, the differences between countries are notable. Several recent, progressive constitutions, for example in Colombia (1991), Venezuela (1999), Ecuador (2008), Bolivia (2009) or, receiving more international attention, in the Republic of South Africa (1996), provide for a broad range of fundamental rights, including economic, social and cultural rights.⁹ In contrast, in many established democracies of the “Global North”, including the much-praised Swedish welfare state, basic social rights appear only rarely and sporadically. Or these rights do not give rise to subjective legal rights that can be sued for. All the more important is the question of which legislative or other political, educational, etc. measures are taken to comply with human rights obligations and to implement human rights in the best possible way (Table 3.2).

Table 3.2 Comprehensive legal recognition of human rights conventions

3.3 Ambitious State Human Rights Policy

Based on the legal recognition of human rights, state human rights policy can also have different levels of ambition. It can only do what is necessary to implement state human rights obligations, or it can strive to fulfil the state obligations entered into as comprehensively as possible and, beyond that, actively promote human rights internationally. It can see itself as a specialised policy area for the promotion of human rights and/or represent a cross-sectional function aimed at bringing human rights norms and principles to the fore in the various areas of foreign and domestic policy. It can be formulated behind closed doors and over the heads of those affected, or it can be designed in a transparent and participatory manner and work towards a living “culture of human rights” in which people can independently formulate and assert claims to human rights and in which it is possible for them to have a say in decisions relevant to human rights and to review their implementation. An ambitious human rights policy is responsive. It picks up impulses from society that are relevant to human rights, integrates them into its human rights policy and roots human rights in political practice. To this end, human rights must not remain an abstract requirement of international human rights conventions and institutions, but must be “broken down” and made comprehensible and usable for everyday practice.

The clear and consistent orientation of state action towards international human rights norms and fundamental human rights principles (non-discrimination, participation, accountability, inclusion), combined with the explicit recognition of people as rights holders and states as primary duty bearers, are essential features of a human rights approach in state politics. This elevates human rights to a binding frame of reference for all policy decisions and thus presents itself as a cross-sectional political goal. On the one hand, such a broadly conceived human rights-based policy differs from a narrowly conceived human rights policy, which to a certain extent leads a niche existence and does not have an impact across policy fields. On the other hand, it distinguishes itself from a policy that is “only” relevant to human rights, but which does not explicitly refer to human rights. Based on different formulations of human rights-based approaches,¹⁰ the characteristics of a human rights approach in state policies can be summarised as follows:

Characteristics of a Human Rights Approach to State Policy

Human rights function as a central frame of reference for state policy. This consistently refers to human rights standards, rights, duties and principles (such as non-discrimination, participation, accountability, inclusion).

Human rights represent a cross-sectional function of state policy. Beyond specific human rights measures, human rights are enshrined, taken into account and implemented in all areas of state and municipal policy.

State policy recognises, protects and supports the human rights claims of all people in their capacity as holders of human rights. It picks up and integrates human rights impulses from society.

State policy recognises and implements its obligations to respect, protect and fufil human rights. The obligation also includes measures to raise human rights awareness in society and to make human rights understandable and usable for everyday practice.

State policy also promotes human rights beyond its own human rights obligations. In other words, it voluntarily does more than is required by law.

State policy actively promotes international human rights norms, institutions and procedures.

Source: Own compilation

3.4 A Variety of Topics

The potential range of topics for an inward-looking human rights policy is large. The question of which human rights issues are placed on the political agenda depends not least on which human rights demands are made of governments and parliaments, for example by those affected, civil society, the media, the courts and international human rights monitoring bodies—and how responsively the political institutions deal with them. At the same time, pro-human rights actors within government and parliament can become active on their own initiative. Constitutive for inward-looking human rights politics is the acceptance that human rights are not only violated in foreign countries, but that there is also a need for human rights improvements and actions in one's own country. A corresponding awareness often has to develop first.

This can be exemplified by the human rights reports which the German government has submitted to the Bundestag every 2 to 3 years since 1990. While the first five reports in 1990, 1993, 1995, 1997 and 2000 only dealt with human rights in foreign relations, the “Sixth Report of the Federal Government on its Human Rights Policy in Foreign Relations and Other Policy Areas” (2002), on the recommendation of the Bundestag, for the first time systematically included domestic policy issues. Since then, the reports have covered both foreign and domestic policy areas. In 2012, the rather long-winded title was changed to “Report of the Federal Government on its Human Rights Policy”.

A review of the reports between 2002 and 2022 shows, on the one hand, a continuity of domestic policy issues that are present throughout the reports. These include the approaches to selected civil-political and economic, social and cultural rights, the rights of women and children, and the issue of racism. In some cases, however, new topics (or new aspects of existing topics) were added and a changing socio-political awareness of the disadvantages of social groups is expressed in the reports. For example, over time people with disabilities, older people, as well as trans* and inter* persons have increasingly or for the first time become the focus of attention. Significant events and developments are also reflected in the reports. For example, the seventh Report (2002–2004) embraced the topic of “Human Rights and Counterterrorism”, which had also gained in importance in Germany after the attacks of 11th September 2001 in the USA. Socio-politically discussed topics such as the ban on torture, headscarf bans or the protection of refugees also found their way into the reports, as did later topics such as whistleblowing, the No Hate Speech Movement, racial profiling, human trafficking, climate change and many more.

Germany’s official state reports to international human rights treaty bodies, by means of which the federal government gives an account of the implementation of the individual human rights treaties in and by Germany, are also informative. In accordance with the conventions, civil-political rights (ICCPR), economic, social and cultural rights (ICESCR) as well as the civil, political, economic, social and cultural rights of women (CEDAW), children (CRC) and persons with disabilities (CRPD) as well as the issues of torture (CAT) and racism (CERD) are dealt with in Germany. NGOs try to influence the list of issues through written submissions to the committees and to critically supplement the state reports, which tend to be whitewashed, in the form of parallel reports. Many of these issues are also reflected in the Universal Periodic Review (UPR) procedure of the UN Human Rights Council.

Finally, the annual report of the German Institute for Human Rights (GIHR) on the human rights situation in Germany, which is submitted to the Bundestag, should also be mentioned. Although the reports only pick out the respective focal points, overall, they cover a broad spectrum of topics. In the reporting periods from mid-2015 to mid-2022, the reports of the GIHR have dealt with the situation of refugees, racism and right-wing extremism, social problems from a human rights perspective, such as the labour exploitation of migrants or homelessness in Germany, as well as the topic of business and human rights. Exclusions from the right to vote or the right to care for people with disabilities, coercion in psychiatric institutions as well as the rights of children and older people were also addressed in detail. A comparatively new topic is climate policy and human rights.

3.5 The Actor Landscape

In order to analyse state human rights policy, it is important to gain an overview of who pursues it and to what extent it is influenced by non-governmental state and non-state actors within the country and by international human rights institutions and actors outside the country. With regard to state human rights policy, the first important actors are those whose participation is institutionally based, i.e. who are involved in an institutionalised way in the formulation and implementation of state human rights policy, if not actually responsible for it. First and foremost are the respective governments and ministerial bureaucrats, who determine what consideration and priority is given to human rights in the day-to-day work of government and what measures are (to be) taken to implement and promote human rights. Parliaments come on the scene as human rights policy actors above all when they pass laws relevant to human rights and they (can) exercise their control function over the government with regard to the protection and implementation of human rights. With the independence of parliaments from the government, their potential importance as human rights actors in their own right increases.¹¹ They can also pursue symbolic human rights policies. In federal and decentralised government systems, the competences of the various multi-tier governance structures must be taken into account accordingly. In this context, local politics also plays an important role, especially because it is at the local level that many human rights problems arise, and human rights have to prove their practical significance. Courts, on the other hand, are part of the judicial branch and not political actors. However, if they act independently of the government, they play an important role in punishing and protecting against human rights violations. Judicial decisions, for example by constitutional courts, can also have a significant impact on human rights policy. Moreover, national courts are indispensable ‘compliance partners’ of judgments by regional human rights courts, at least when they follow their decisions (see Krimmendijk 2022).

Furthermore, the protection and promotion of human rights, to which the general legislative, executive and judicial powers are committed, can be strengthened with the help of specific human rights bodies. This could include, for example, human rights departments and human rights representatives in governments, provided that they endeavour to take up human rights concerns within the respective government and ministries and help to enforce them. The UN Draft Principles on Parliaments and Human Rights also consider parliamentary human rights committees to be the bodies within parliaments responsible for leading or coordinating parliamentary work on human rights and assign them wide-reaching functions,¹² which they only partially undertake in practice. In addition, there are ombudspersons or other independent national human rights institutions (NHRIs) in accordance with the Paris Principles.¹³ NHRIs advise policymakers, produce studies or monitoring reports, provide human rights education or participate in court proceedings or international human rights monitoring; some also act as complaints bodies for individual cases. In addition, at national and sub-national levels, there may be dedicated anti-discrimination bodies, anti-torture committees, etc. At the municipal level, many human rights cities are committed to promoting a culture of human rights and may also have their own human rights office (such as Nuremberg, to name just one example).

In addition to institutional participation, actors whose participation is functional, such as those who contribute human or financial resources, information, expertise or other capacities that are important for the shaping or legitimisation of state human rights policy, are involved in the shaping of state human rights policy on a case-by-case or regular basis. Often, these are academic or civil society actors who have access to the relevant institutional actors and are consulted by them or are also used to carry out human rights capacity building. Cooperations are not uncommon between state and non-state actors in human rights policy.

In addition, there are those actors who are not directly involved in shaping state human rights policy, but who influence public perception and state policy “from the outside” through their demands and actions. This includes a broad spectrum of civil society actors who (explicitly or indirectly) refer to international human rights and demand their implementation. First and foremost, human rights NGOs should be mentioned here, especially if they conduct public protests and campaigns. However, these can also be other civil society groups, trade unions, welfare organisations, churches, etc., which address human rights or human rights-related problems and urge that they be remedied. At the same time, the mass media and social media, as well as academics and epistemic communities, also play a role in shaping the human rights discourse in a country.

3.6 References to Theoretical Approaches

Studies dealing with the role of national human rights systems in the implementation of international human rights law emphasise the crucial importance of domestic actors and institutions for legal and policy change. Zipoli (2023), who refers to Beth Simmons's domestic policy theory on compliance with human rights treaties (Simmons 2009), is a case in point. The underlying logic of such compliance approaches is:

International human rights regimes can be effective if domestic actors - ministerial staff, parliamentarians, NHRIs, ombudspersons, nongovernmental organisations, protest movements, political parties, or any other group - can use them to pressure their domestic government into increased respect for human rights (Zipoli 2023, p. 119).

At the same time, international norms and institutions are an important lever for domestic human rights actors to strengthen and become effective. They influence the domestic agenda setting of government and parliament; ideally, they create opportunities for ligitation; they can be used as a strategic tool for political mobilisation (Simmons 2009, p. 313, Zipoli 2023, pp. 120–121).

Compliance approaches that ask how international human rights treaties are implemented within states have their origins in research on international relations. However, insofar as they focus on the crucial importance of domestic institutions and actors, an in-depth analysis of national human rights systems is indispensable. To this end, the complex political processes of how human rights problems are put on the political agenda in the respective countries and how human rights policy measures come about must be examined in detail. It is important to note that this is not only about how recommendations and decisions of international human rights institutions are implemented in the sense of a top-down approach. In the sense of a bottom-up approach, it should also be asked to what extent civil society groups—explicitly or indirectly—bring human rights demands to the attention of policymakers without necessarily referring to the human rights monitoring of international institutions. In fact, this is common practice, as many social actors are not very familiar with the international human rights system. The basis for such demands on the part of affected people and their support groups are often direct experiences of injustice that are publicly articulated, for example because certain groups in society are excluded and discriminated against. Such experiences of injustice and the local struggles against articulated injustices must therefore be targeted. Ideally, they also influence state human rights policy.

Interestingly, policy research provides us with useful conceptual starting points for the study of human rights policy within nation states, complementing mainstream compliance approaches. Although policy research has not yet seriously addressed human rights policy, it helps to examine the complexity of the political decision-making process within states. However, the fact that human rights policy is a cross-sectional policy complicates policy analysis considerably and makes it useful to distinguish between sub-policies, each with its own policy arena. It is obvious, for example, that the legal framework, the landscape of actors and the content of human rights policy differ considerably depending on the policy field—whether it is the prohibition of torture, freedom of expression or the right to education, to name just three examples. Nevertheless, cross-thematic terms and concepts of policy analysis are helpful for the presentation and analysis of human rights policy.

3.6.1 The Policy Cycle

The notion of a policy cycle offers first heuristic access to the human rights policy processes in individual policy fields. The policy cycle understands politics as a process of problem solving (which is a precondition-dependent assumption). Ideally, different phases of the political process are distinguished: problem definition, agenda setting, policy formulation, policy implementation and evaluation. The latter then leads, if necessary, to redefining problems and feeding them back into the political process—or to discontinuing the political measures.

In practice, policy processes are usually far more complex than the policy cycle suggests; they do not simply follow the ideal sequence and are always connected with parallel or time-delayed political processes in other problem or policy areas. Nor is politics always problem-solving oriented. Sometimes it presents itself only as symbolic politics or focuses primarily on winning votes and political support. Nevertheless, the notion of a policy cycle is also heuristically useful in relation to human rights policy because it helps to systematically distinguish different dimensions of the policy process at the national level.

3.6.1.1 Problem Perception and Agenda Setting

Thus, the perception of certain social situations as social ills and their classification as human rights problems can be understood as independent cognitive and interpretative processes that are inherent in or precede human rights policy demands. Such perceptions and interpretations are strongly dependent on the socio-political context and always connected to actors. Individual or collective actors are therefore always required who perceive a social situation as man-made injustice or at least as injustice that can be influenced by people. Under certain conditions, such experiences of injustice can be articulated publicly and, if necessary, can also take the form of human rights claims. A central role is played here by civil society actors such as NGOs and protest movements that denounce human rights abuses and make human rights demands on politicians. With a view to problem perception and problem articulation, considerations on framing processes that we have already discussed in relation to social movements can be fruitful. In addition to NGOs and social movements, however, functionaries in politics and administration also “frame” problem situations and develop perspectives and problem definitions that can coincide or conflict with human rights framing.

Whether and to what extent human rights concerns are heard and listened to in the public and political spheres is another, analytically quite interesting question. Policy research has highlighted an important aspect of the political process here with “agenda setting”, because it is obvious that not all societal problems attract the attention of the mass media and those politically responsible in government and parliament. Public and political attention is a scarce resource, and human rights issues “compete” with many important and unimportant issues that are (supposed to be) dealt with at the same time, as well as with all kinds of routine political issues. Human rights activists know how difficult it is, even in democracies, to position human rights issues in the media and to bring human rights concerns to the attention of parliament or ministries.

So, under what conditions do human rights issues enter public debate and under what conditions do they find themselves on the political agenda? Some topics seem to be more suitable than others. Here, considerations from policy research can be applied that emphasise concreteness and clarity (unambiguity vs. ambiguity), social relevance (high vs. low impact on social groups), urgency (urgent vs. postponable), complexity (simple vs. complex), novelty (novelty vs. routine matter) and symbolic power (high vs. low symbolic significance) (Schneider and Janning 2006, p. 56). Thus, it can be assumed (although it needs to be empirically verified) that easily communicable, urgent human rights problems of great social relevance with clearly named responsible parties and a significant symbolic meaning have great potential for attention, especially if they fit into the respective attention cycles and “issue trends” to which human rights issues can also be subject.

Moreover, it depends on who identifies these issues and in what way. From the perspective of policy research, there is always a need for “discourse generators”, often in the form of “discourse coalitions”, and “agenda setters”. We have already established in the context of social movements that it is helpful for the resonance of (human rights) frames if they are put forward by credible actors in a consistent, high-profile and strategically astute way, and if they correspond to the reality of people’s lives and their values. Accordingly, effective and credible public relations, campaigning and lobbying work as well as the joint coordination of strategies and actions in appropriate networks are important for human rights organisations. This is all the more important because human rights issues are rarely taken up within government and parliament without being brought in “from outside” or attracting public attention. However, this cannot be ruled out.

A corresponding awareness of human rights issues can also arise or develop within the political-administrative apparatus, which motivates action. In addition to the important external initiation of human rights concerns by social and international actors, at best supported by a high level of media attention, human rights issues can also be identified by individuals and groups in government and parliament. In any case, the boundaries are fluid: in the respective human rights problem areas, there are often issue networks or advocacy coalitions in which—across institutional and organisational boundaries—for example actors from politics, society, academia, media and administration with similar belief systems, loosely coordinate to advance a common human rights concern, not infrequently against the resistance of other advocacy coalitions.¹⁴ In addition, rulings by national or regional courts can put human rights issues on the political agenda. Embedded in the European multi-level system, European legislative initiatives also play an important role in the case of EU Member States. Finally, human rights issues can also find their way onto the agenda through international human rights monitoring bodies or transnational forums and actors.

Furthermore, there are unintended triggers—in the language of policy research “focusing events”—which can abruptly draw political attention to human rights problems and temporarily put politicians under pressure to act. For example, the collapse of the “Rana Plaza” building complex in Bangladesh in 2013, in which 1127 textile workers died and 2438 suffered injuries, some of them serious, attracted great public attention worldwide—even more so than the fires in textile factories in Pakistan in 2012. The accidents exemplify the grievances in countless textile factories around the world that produce cheap clothing for the world market under inhumane conditions and became a symbol for the lack of care and irresponsibility of factory owners and their clients in the “Global North”. Ten years after the avoidable tragedy, Amnesty International (2023) concludes that Rana Plaza has triggered reflection among many consumers and importing companies. In the years that followed, textile companies in Bangladesh, largely financed by Western importers, invested considerable sums in labour protection. The minimum wage has also risen, and in some companies, workers are provided with food, accommodation in collective housing and basic medical care. What has remained, however, is often high work pressure, sexual harassment of female workers and, in practice, non-existent protection against dismissal.¹⁵

The tragedy off Lampedusa in autumn 2013¹⁶ was also such a sad focusing event in Europe at the time, which—despite all the demands to the contrary—did not open a new window of opportunity for a fundamentally new European asylum and refugee policy in this particular case. Here it remained largely symbolic politics (Bendel 2014). Only with the many people who fled to Europe in 2015 and 2016 did displacement and migration into the EU once again become a political issue of the first order, which was admittedly highly controversial. The willingness to help on the one hand was contrasted by protests against an alleged “opening of the borders” on the other. Only a few years later, the Russian war of aggression against Ukraine led the EU to activate the Temporary Protection Directive (Council Directive 2001/55/EC of 20 July 2001) for Ukrainian refugees, mostly women and children, for the first (and possibly the last) time. A reform of the European asylum and refugee policy, proposed by the Commission in September 2020, is being negotiated in 2023 in the EU trilogue (Council, Commission, Parliament) under the impression of rising numbers of refugees also from other countries, and is to be adopted before the European elections in 2024.

Focusing events can also have longer-term effects and are then more than just an event that attracts short-term attention. The consequences of the terrorist attacks of 11th September 2001 in the USA were particularly far-reaching and have also been cited in the literature as an example of a focusing event (Rüb 2014, p. 379). In the following decade, they not only determined the security policy agenda, but also had a massive impact on human rights. To the extent that even established democracies—such as the USA and the UK—committed serious human rights violations in the fight against international terrorism, it was easier for autocrats to use terrorist threat scenarios to legitimise repression. The military attack on Ukraine in 2022 is potentially an even more consequential event. The Russian war of aggression is not only a focusing event, but an often cited turning point for the international and European security system.

3.6.1.2 The Policy Formulation

Policy formulation describes a process in which—in relation to our topic—articulated human rights policy problems, proposals and demands become political programmes. Goals and priorities of governmental human rights policy as well as measures for their implementation are named and decided on. Such goals and plans can be written down in government programmes and coalition agreements, for example. Additionaly, there may also be National Human Rights Action Plans. These go back to a recommendation of the Vienna World Conference on Human Rights in 1993, and their preparation is also recommended by human rights committees of the United Nations. There may also be issue-specific Action Plans, for example to combat violence against women, racism or other issues of human rights significance. National Action Plans (NAPs) on Business and Human Rights, for example, which have been called for since 2011 by the EU, the Council of Europe, the OECD, the G20 and the United Nations in order to implement the UN Guiding Principles on Business and Human Rights, have received considerable attention. Such NAPs have already been published in 32 countries and are being developed in another 20.¹⁷ In some cases, the NAPs on business and human rights have led to so-called supply chain laws, for example in France and Germany. The EU has also currently developed a Corporate Sustainability Due Diligence Directive.

Occasionally, (amendments to) laws also become necessary as a result of decisions by national and regional courts. In Germany, for example, the Aviation Security Act (LuftSiG, 2005, last amended in 2020), which did not stand up to constitutional scrutiny by the Federal Constitutional Court (2006) on one central point, i.e. the possible shooting down of an aircraft carrying passengers that is misused for a terrorist attack, attracted great public attention after the attacks of 11th September 2001 in the USA.¹⁸ Other examples in Germany include the revision of subsequent preventive detention in the Criminal Code (2013) or the withdrawal of the exclusion of people under so-called complete care and of forensic psychiatry patients from the right to vote in the Electoral Act (2019). In March 2021, the Federal Constitutional Court also ruled that the provisions of the Climate Protection Act (KSG) on national climate protection targets and the annual emission levels permitted until 2030 are incompatible with fundamental rights of the young complainants, insofar as sufficient requirements for further emission reductions from 2031 are missing.¹⁹

What is important in terms of human rights policy is the question of the extent to which civil society human rights actors succeed in incorporating their demands into the shaping of human rights policy goals, programmes and laws. To what extent do they actively lobby in the respective human rights problem areas? How open to human rights actors and their concerns are the respective functionaries in the political-administrative apparatus, who usually have more or less clear ideas about which problems should be tackled (with priority), in what way and with whom? In order to find this out, it is not only necessary to compare human rights demands from civil society on the one hand and the proclaimed goals of state human rights policy on the other. A closer examination of the respective processes of policy formulation is also necessary, for example in the form of process tracing, which combines causal-process observations with specific knowledge of the processes (see e.g. Beach and Pedersen 2013; Reiners 2021). Qualitative interviews with the actors involved in each case, who have the relevant insider knowledge, may be informative here.

3.6.1.3 The Implementation and Enforcement of the Policy

The adoption of policy programmes does not necessarily mean that they will be implemented. This is especially true for human rights policy frameworks and Action Plans, which are strongly influenced by human rights rhetoric. Therefore, it must always be examined to what extent the programmatic specifications are concretised and effective measures are taken to protect and promote human rights. The implementation is decisive for whether human rights policy is pursued consistently and benefits the protection of human rights.

Here, too, human rights reports by governments can provide a general (although tendentially sugarcoated) overview of the measures taken. It can be left open whether laws are still understood as measures to be implemented or as measures already implemented. The boundaries between policy formulation and implementation are fluid. Without a doubt, however, we must move away from the idea that implementation follows a purely top-down logic. This does not only apply, for example, to the sometimes-deficient implementation of Union law in EU Member States, visible in numerous EU infringement proceedings. The implementation of national laws is also affected. Their implementation is by no means always problem-free. This is all the more true in states with federal structures and autonomous regions. To put it simply: the diversity of state and non-state actors involved in the implementation of laws is inevitably accompanied by an increased need for coordination in order to implement the previously formulated goals of public policy.

Enforcement problems can arise even in the case of sanctioned, regulatory legal measures in the form of requirements and prohibitions, especially if the possibilities for control and sanctions are associated with a high level of effort and there is a distinct tendency to violate regulations. Violations of fundamental labour rights can also be found in Europe, for example in relation to migrant workers in a number of sectors, be it the construction industry, international road transport, agriculture, the meat industry, gastronomy, not to mention home care and domestic help. No less complex is the implementation of (re-)distributive programmes, which entails high administrative and financial costs. The expansion of an inclusive school system called for by the UN Committee on the Rights of Persons with Disabilities, for example, requires not only personnel, organisational and financial resources. It also requires the effective action of the executive and the active participation of all stakeholders, from the school supervisory authorities to the headmasters and teachers to the parents and the children with and without disabilities. In short, implementation is the difficult part of human rights policy.

3.6.1.4 The Policy Evaluation

Evaluation of political action is an integral part of politics. It takes place in the sense of a political evaluation by a multitude of stakeholders and by the media—and as such is always part of the public debate about “good policy”. This must be distinguished from an administrative evaluation of state action, which takes place, for example, within the framework of controlling. Externally, this focuses on the management, control and accountability of administrative action in terms of the specified political goals. Internally, the focus is on performance, efficiency and economy in terms of administrative goals (Wollmann 2009). In addition, there may be a judicial evaluation of state action in the area of fundamental and human rights by national or regional courts or an evaluation under international law by UN human rights monitoring bodies.

To be distinguished from (a) ongoing political, (b) routine administrative, (c) case-by-case judicial and (d) international legal evaluation is (selective) academic policy evaluation in the narrower sense. It refers to the academic and empirically supported assessment of the conception, implementation and effectiveness of public policies, be they measures, programmes or projects.²⁰ The focus is usually on an impact analysis of public policies that have already been implemented. Then, for example, it is examined to what extent the previously formulated political programmes and measures have been implemented and what policy results have been achieved (output) and how the output performance has affected the target group(s) (outcome), and provided through this, also the social conditions (impact) which the policy addresses. However, since we are often dealing with multi-layered interrelationships of effects, it makes sense not only to look at linear chains of effects, as often happens, in which individual variables are examined in isolation. Rather, it is important to think in terms of complex effects and to take a context-sensitive look at a variety of determining factors and weigh them against each other.²¹

Scientific evaluations are application-oriented and usually contain policy recommendations. Provided they are taken up constructively by policymakers (and not just used to legitimise their own political actions), they ideally provide the basis for an evidence-based assessment and, if necessary, a reorientation of policy. Comprehensible problem definitions as well as precise, implementable and innovative recommendations for action, combined with a clear target group approach, are considered useful for the acceptance and implementation of recommendations (Sager et al. 2021, pp. 264–265). The actual policy evaluation takes place ex post in line with the policy cycle. Policy impact assessments in the run-up to, and interim assessments during the implementation of policy programmes and measures (ex-ante and midterm evaluations) refer, in the logic of the policy cycle, to policy formulation and policy implementation.

In western democracies, scientific policy evaluations are now firmly established. However, a comparison of countries reveals considerable differences with regard to their institutional embedding (Stockmann et al. 2020). Nor is such institutionalisation a guarantee for the emergence of an “evaluation culture” that promotes political learning beyond control, accountability and self-legitimation. However, it can at least be seen that in several European countries an increasing number of laws contain evaluation clauses. This is important: “A responsible legislator has to assess and consider the consequences of his actions in advance as well as analyse and evaluate them afterwards and - if necessary - draw consequences” (Weingärtner 2021, p. 10, own translation).

From a human rights perspective, it is important to know what impact laws in different policy areas have on human rights. As already mentioned, this can be examined in advance of the measures—for example by means of a human rights risk assessment or a human rights impact assessment—as early as during the policy formulation stage. However, this can also be done during the process of policy implementation or retrospectively as part of an ex-post evaluation. On the other hand, identified human rights policy measures that are expressiv verbis intended to benefit human rights protection can be examined in terms of their impact.

One example: In the wake of the attacks of 11th September 2001 in the USA and other terrorist attacks around the world, many countries passed new security laws that had human rights implications.²² On the one hand, they served to protect the population as required by human rights. On the other hand, they were often accompanied by interferences in the fundamental and human rights of the population, which must stand up to scrutiny under the rule of law. In Germany, for example, the Counterterrorism Act (which has been amended several times) was therefore subjected to several evaluations before time limits were removed in 2020 and the obligation to evaluate was lifted. The powers granted to the security authorities in 2002 to combat terrorism were thus constantly evaluated on the basis of a legal mandate, and the legislator used the results of the evaluations to make changes and remove unused legal authorisations (Weingärtner 2021, p. 16). For our topic, it is important that such evaluations seriously examine whether the legally permitted interventions in fundamental and human rights were proportionate to the intended goals and the effects actually achieved.²³ However, a methodically admittedly difficult “combined surveillance account” that compiles all security laws and their use by the competent authorities does not yet exist in Germany either—but was announced in the 2021 coalition agreement:

The state’s encroachments on civil liberties must always be well justified and considered in their overall impact. We want to evaluate the security laws in terms of their actual and legal effects as well as their effectiveness. That is why we are drawing up an overall surveillance account and, by the end of 2023 at the latest, an independent scientific evaluation of the security laws and their impact on freedom and democracy in the light of technical developments. Any future legislation must comply with these principles. To this end, we are creating an independent body of experts (Freedom Commission) to advise on future security legislation and evaluate restrictions on freedom (Coalition Agreement 2021, 3419–3426).

Finally, it should be mentioned again that policy evaluation within the framework of the policy cycle is not limited to academic evaluations in the narrower sense and does not only include evaluations commissioned by the executive. In the sense of feedback loops, it is also about how stakeholders evaluate the programmes and measures taken and implemented, what problems they identify and what corrections they recommend. There are countless examples of how human rights organisations critically evaluate individual policy measures and call for policy changes.

3.6.2 The Party Difference Approach (Partisan Theory)

Does it actually make a difference in terms of human rights policy which party or parties are in government? Proponents of the party difference theory

… formulate as scientific hypotheses what is on everyone’s lips in a popular version and is sometimes affirmed, sometimes vehemently denied: The party-political colouring of the legislature and the executive makes a difference in politics, namely in policy production (“policy output”) as well as in the ultimate results of state activity (“policy outcome”). Thus, from the perspective of party difference theory, state activity is primarily determined by the party-political composition of the government (Schmidt et al. 2007, p. 51, own translation).

Party difference theories thus emphasise the importance of the political-ideological “family affiliation” of the governing parties first of all for the programmatic shaping of government policy, i.e. for the question of what policies the governing parties want to realise. This is followed by an examination of the extent to which the governments actually (can) realise such policies. To this end, the framework conditions of government action are also examined, such as the power resources of the governing party (or parties) inside and outside parliament, institutional framework conditions and the existence of co-rulers or opponents to the government (Schmidt et al. 2007).

Also with regard to human rights policy, it is to be expected that the party-political composition of the government will make a difference. This is already evident in the party and election programmes, the human rights policy profiles of which differs considerably. Despite all consistencies, differences in the human rights priorities, programmes and measures of the policies of changing governments can also be clearly recognised, although these are subject to various restrictions on action, especially within the framework of government coalitions, and path dependencies exist. Due to its easy empirical verifiability, the party difference approach is particularly well suited for studies on human rights policy, both in a time-delayed (diachronic) and in a simultaneous (synchronic) comparison of similarly or differently coloured governments (coalitions). A small example from Germany on the right to health: Under the title “A strong case for party difference theory”, Günther et al. (2019) showed that the introduction of a health card for asylum seekers²⁴ in the 16 German federal states did not depend solely, but nevertheless significantly, on the party-political composition of the respective state governments.

3.6.3 Advocacy Coalitions

The importance of so-called advocacy coalitions has already been mentioned. The advocacy coalition approach, as originally developed in the context of policy research by Paul Sabatier in cooperation with colleagues (Sabatier 1988, 1993; Sabatier and Jenkins-Smith 1993), seeks to explain long-term policy change. The approach assumes that actors come together in policy subsystems—across various institutional and organisational links—who have a common set of political values, problem perceptions and causal assumptions (belief systems) and coordinate their actions at least weakly over a longer period of time with common goals.²⁵ These can be, for example, actors from politics, academia, media, society and administration. The approach further assumes that within a policy subsystem there are one or a few policy advocacy coalitions whose members engage politically in order to transfer their basic policy core beliefs in the respective policy (sub)field into public policies. The shaping and change of (sub-)policies are thereby decisively determined by the action and debate between the respective competing policy advocacy coalitions. (In the case of a single coalition, this is a subsystem with little conflict).

In the case of relatively stable parameters of the policy subsystem (characteristics of the policy field, the constitution, etc.), according to Sabatier’s assumption, policy change can result on the one hand from external events and changes (e.g. in public opinion, as a result of a change of government, due to effects from other policy fields, etc.) changing the restrictions and possibilities for action of the subsystem actors. On the other hand, policy change can also be based on changes in the belief systems and thus the action orientations of the subsystem actors. This is where policy-oriented learning comes into play, which can initially take place within advocacy coalitions, but under certain conditions (e.g. common forums and overarching political goals) also across coalition boundaries. However, Sabatier remains sceptical about the effect of policy-field-internal learning processes, which often only affected secondary aspects; fundamental policy change would primarily be attributable to external factors, as the initial conditions of political action changed.

Although the advocacy coalition approach in its original and further developed²⁶ form has hardly been applied in the analysis of human rights policies so far, the notion of competing advocacy coalitions is also useful in the field of human rights policy. In this sense, corresponding advocacy coalitions can also be identified in human rights subpolicies that are in conflict with each other. This is the case, for example, in the field of business and human rights, specifically in the long-standing political disputes over the design of National Action Plans on Human Rights and Business and over possible supply chain laws in various countries.

Such advocacy coalitions can also be identified in the long-standing debate in Germany on the ratification of an optional protocol to the ICESCR, which provides for a complaints procedure. The advocacy coalition included representatives of NGOs, academia, parliament and various ministries, most notably the Federal Foreign Office and the Ministry for Economic Cooperation and Development. The coalition of opponents was mainly made up of those ministries (and departments) that were responsible for the domestic implementation of the Covenant, supported by traditional legal scholars who were sceptical about the justiciability of social human rights.²⁷ Thus it happened that the federal governments of all party political colours had not ratified the Additional Protocol after its adoption (2008) and entry into force (2013) up to and including the 19th parliamentary term—despite all announcements to (intensively) examine a possible ratification. Even in the 19th parliamentary term, when ratification seemed to be a foregone conclusion, it did not happen in the end. Here, the analysis of advocacy coalitions can be linked well with political science approaches to veto players and veto points. Ultimately, another change of government was needed. In the coalition agreement of 2021, ratification of the Additional Protocol was agreed upon, and in 2023 Germany ratified the Additional Protocol.

3.6.4 Policy Learning, Lesson Drawing and Policy Transfer

The types of learning used in policy research distinguish between simple and complex forms of learning. Simple learning is mainly about changing strategies to better achieve existing goals. It is therefore often “instrumental learning” or “improvement learning”, which is aimed at designing and implementing political programmes more effectively, more efficiently, more transparently, with more participant orientation, etc. Complex learning, on the other hand, questions and changes fundamental beliefs, goals and assumptions that guide action. Here, learning processes may trigger real paradigm shifts.

Linked to instrumental “improvement learning” is the lesson-drawing approach of the British political scientist Richard Rose. Essential here is his book “Lesson-Drawing in Public Policy. A Guide to Learning across Time and Space” from 1993. His concept is closely related to political practice. When faced with acute tasks and urgent problems that, in the view of the government or the public, can no longer be dealt with satisfactorily by existing policies,²⁸ political decision-makers often look for lessons, experiences and insights gained from other spatial units (e.g. municipalities, federal states, countries) and temporal phases (e.g. in their own history) in order to tackle the tasks and problems in a promising way in terms of their own goals. Rose sees such lessons as tools for political action, and he understands lesson drawing as the conscious and systematic process of identifying, evaluating and adopting such practical experiences and lessons.

In the area of policies, on which the book already focuses according to its title, it is a matter of adopting political programmes that have already been applied elsewhere or in earlier times (Rose 1993, p. 21). This does not necessarily mean a 1:1 adoption (copying). As Rose illustrates with policy programmes, other forms of lesson-drawing are also possible: for example, a modified adoption of programmes adapted to local conditions (adaptation); or a combination of elements of different programmes that have been applied in different places (making a hybrid); or a combination of one's own or other programme components (synthesis). It is also possible that experiences elsewhere only serve as inspiration for the development of one's own, new programme (inspiration) (Rose 1993, p. 30). Although Rose focuses on policy programmes, this distinction can also be applied to the adoption of institutional arrangements. Significantly, Rose, who was also an election researcher, himself repeatedly cites examples of electoral law reforms (Table 3.3).

Table 3.3 Policy Learning: adoption of political programmes

David Dolowitz and David Marsh follow Rose and consider lesson drawing to be a voluntary policy transfer. Besides such voluntary transfers, policy transfers also include direct and indirect coercive transfers (Dolowitz and Marsh 1996, pp. 344 ff.). They cite IMF conditions for international lending to “developing countries” as an example of such pressured or coerced adoption of political programmes. Indirectly, they argue, externally induced adoption results from mutual or unilateral dependencies and the associated convergences in policy design. At the same time, the two authors point out in their 1996 literature review that the analysis of policy transfers does not only refer to policy field-related goals, contents and instruments, and identify the following areas of transfers: policy goals, policy structures and policy contents; policy instruments and administrative techniques; institutions; ideologies (and ideological rhetoric); ideas, attitudes and concepts; negative lessons (Dolowitz and Marsh 1996, pp. 349–350).

Policy research has not yet systematically applied questions of policy learning to human rights policy. However, numerous examples from the field of human rights policy can be examined to see to what extent the conditions that Rose and Dolowitz and March identified for the transferability of programmes (and which are not elaborated here for reasons of space) also apply to the transfer of human rights policy best practices or relevant practices.²⁹ It is therefore worthwhile examining local, national and international processes of lesson-drawing and policy transfer in the field of human rights policy more closely.³⁰ This is already possible at the level of students' theses. To give just one example: Regarding the human right to housing, it is possible to ask to what extent and under what conditions the Finnish “housing first” model can be transferred to other countries as a measure against homelessness. In addition to the specific local conditions, however, path dependencies must always be taken into account.³¹