2. Academic debates about international human rights and the concept of legitimacy As international human rights regimes increasingly seem to face challenges from the governments and other actors they seek to regulate, they have also spurred debates among scholars of law, philosophy, political science and international relations. This volume presents a selection of chapters which variously analyse the legitimacy of international human rights regimes from the perspectives of international, political and legal theory. We have selected the contributions bearing in mind that any discussion of the legitimacy of international human rights institutions must necessarily straddle disciplinary boundaries. It should address both normative concerns of what legitimate authority entails, and the empirical concerns of how to assess the legitimacy of authorities in the real world. It should be comprehensible to legal theory, political theory and international theory, since the very problem of the legitimacy of international human rights regimes may both arise and require answers across the conventional distinctions between those theoretical traditions. While much of political philosophy and democratic and constitutional theory traditionally has tended to regard its subject as an enclosed state in isolation, international human rights institutions pose a problem precisely because they seem anomalous, at face value, to such assumptions, not least because they straddle the boundary between international and national. Similarly, while theories of international relations and international legal theory traditionally regarded sovereign states as the most important, if not the only, agents in world politics, international human rights systems and their normative premises challenge such conceptions: Even though sovereign states have created and consented to them, they claim authority over states, but also increasingly over individuals and non-state agents, and they grant individuals as well as certain other non-state actors a standing and independent agency in international affairs. As such, the issues this volume addresses are located at this nexus between theoretical traditions and conceptual boundaries.
Across all three disciplines, we find an increasing scholarly interest in recent years for studying human rights as international norms, treaties and institutions. In political science and international relations, empirical scholars equipped with increasingly sophisticated quantitative and qualitative toolboxes have recently produced a burgeoning literature seeking to understand whether and how international human rights norms impact on the behaviour of states and other actors (for overviews, see Hafner-Burton 2012; B. Simmons 2009, pt.I; Tsutsui et al. 2012). Research has revolved around what leads governments to participate in international legal regimes that seemingly constrain their political discretion over their citizens, the procedures by which such regimes make and craft decisions, whether they actually influence the rights behaviour of states, and the role of domestic and transnational institutions and agents in those processes. While this line of research is still in its infancy, its outcomes may provide important and sometimes provocative insights and arguments to normative analyses of international human rights regimes. Take, for instance, the finding in many studies that a state’s support for particular international human rights treaties does not generally correlate with actual human rights protections in that state, and that the treaties’ effects are highly conditioned on domestic politics and institutions. On the one hand, such factual findings may seem to render the political controversy surrounding international human rights norms ill-informed or misleading, exaggerating the political impact and judicial authority of international human rights treaties and treaty bodies generally. An established international court as the European Court of Human Rights may have a significantly greater influence on its membership than global supervisory organs such as the Human Rights Committee or the Committee on the Rights of the Child. On the other hand, empirical research may also lead us to ask new, qualified questions about how to normatively evaluate the soft, subtle and conditioned influence international legal norms do have when they interact with domestic institutions of rule of law and democracy.
Political and moral philosophers have recently turned their attention to international human rights. One of the key apples of contention among philosophers concerns what a philosophical theory of human rights should do (for overviews, see Baynes 2009b; Baynes 2009a; Buchanan 2010; Beitz 2009; Ingram 2008; Valentini 2012b). The conventional approach to the philosophy of human rights has been to theorize ‘a concept of human rights [as a kind of general moral rights] that can be understood without reference to the global legal-institutional phenomenon of human rights’ (Buchanan 2010). In contrast to such approaches, however, philosophers have recently sought to develop a political conception of human rights. On this approach, the philosopher’s task is ‘to provide a critical reconstruction of human rights as they are in the international legal doctrine and practice of human rights’ (Buchanan 2010). The point is not to evaluate whether this real-existing human rights practice conforms to some philosophical moral theory of what human rights are (which human rights there are, how they are justified, and so on), ‘but rather to clarify the understanding (or understandings) of human rights with respect to its own practice’ (Baynes 2009a). However, as Allen Buchanan points out, whether one starts in the legal-institutional phenomenon of human rights or in a moral conception of individual rights, both approaches require, sooner or later, a critical reconstruction of the institutionalized practice of international human rights. Eventually, then, the political philosophy of human rights faces questions about how best to implement and institutionalize human rights in our contemporary world, whether human rights institutions like the ones existing today are reasonable, whether the authority they exercise is legitimately binding on their subjects, and how they ought to interface with national legal and political institutions, especially procedures of democratic self-government. Hence, questions of the legitimacy of international human rights regimes should be of greatest interest to this line of scholarship in political philosophy.
The concept of legitimacy in international affairs has recently generated substantial literatures across these three disciplines. Noting how an ever growing number of multilateral organizations, global governance institutions and international courts and tribunal exercise increasingly autonomous authority over the sovereign states that have created them and delegated power to them, scholars have addressed a broad range of empirical and normative concerns relating to the legitimacy of international institutions that lack the transparency, accountability and representation we appreciate in democratic rule (Dahl 1999; Keohane et al. 2009; Clark 2004; Keohane 2003). Moreover, global governance regimes increasingly regulate just not the external relations of states, but increasingly intrude into internal affairs, blurring the traditional distinction between international and domestic spheres of policy and law (Kumm 2004; Zürn 2004).
This volume contributes to literatures on international legitimacy by focusing on international human rights systems, which present a peculiar case for a number of reasons. First, as we noted above, the institutionalization of international human rights may present certain challenges to established conceptions in all three theoretical domains. For traditional political and international theory, it seems to present a conceptual anomaly, which cannot so easily be explained or justified in terms of established concepts and principles. For instance, while democratic theory has long grappled with the issue of whether and how to constrain the majoritarian procedures of popular sovereignty in order to protect the interests of minorities and individuals, such constraints are typically revisable by democratic decisions by the people’s representatives. But how could one combine international treaties and courts with normative democratic theory, given that such international entities serve this constraining function and yet are difficult, if not impossible, to revise, change, exit or supervise? Hence, international human rights norms compel theorists to reflect on standard assumptions about the state as a given unit of analysis.
Second, international human rights institutions are, arguably, qualitatively dissimilar to the sort of global governance institutions usually addressed in many studies of international institutional legitimacy, such as the World Trade Organization, the International Monetary Fund or various organs of the United Nations (e.g., cf. Coicaud 2001; Breitmeier 2008; Koppell 2010; Jönsson & Tallberg 2010). Empirically, the politicization of international human rights institutions apparently takes a different form than public contestation over other types of global governance institutions (cf. Zürn et al. 2012). While a broad range of civil society actors increasingly contest the growing authority of regional and global international institutions, the critics of human rights institutions are typically governments, as our previous examples indicate. Several scholars have pointed out that conventional rationalist-functionalist conceptions of international regimes, as institutionalized solutions to collective action problems that result from international anarchy, seem to be of little use for explaining why states create, delegate authority to, and comply with international human rights systems (B. Simmons 2009; Moravcsik 2000). But if so, how should we instead think of international human rights systems and the authority they claim over states and other actors? And why does their peculiar authority trigger politicization?
Third, in academic debates about international legitimacy, respect for human rights is usually seen as an essential feature of normative legitimacy for political institutions. Indeed, on some philosophical accounts, this is a primary function of human rights: To provide a standard for inter-state toleration, to help decide when the international community should regard a state as a member entitled to sovereign non-interference (Nickel 2006). Similarly, many normative theorists suggest that respect for basic human rights provides an essential aspect of legitimacy for global governance institutions which regulate states in areas such as economy, the environment or security issues. But how should we assess international institutions which justify their existence solely in terms of promoting and protecting human rights? In the case of international human rights regimes, an account of legitimacy anchored in human rights might seem self-referential, or at any rate indeterminate.
Fourth, democracy is probably the only concept that can match human rights as a widely accepted yet essentially contested standard for evaluating the legitimacy of political institutions. Indeed, we are so used to speaking and hearing of democracy and human rights in conjunction that we often regard them as more or less synonymous. More sophisticatedly, we may think of human rights and democracy as interrelated and co-original (Habermas 2001), as defined in terms of one another (Goodhart 2005), or as expressions of a common notion of autonomy (Gould 2004) or of equal status (Buchanan 2010; cf. Hessler, this volume). Empirically, research often finds human rights and democracy not only to be compatible in practice but also to be correlated – democracy becomes difficult to realize where human rights are not safeguarded, and where democracy is lacking, the respect for human rights is usually wanting or worse. However, the issues addressed in this volume demonstrate that international human rights institutions and political practices and principles in democratic states may just as often stand in tension or outright conflict with one another. Among the central legitimacy concerns about international human rights treaties is the normative relationship between democratic rule, human rights and legitimate authority. Human rights treaties give citizens opportunities to pursue their interests vis-à-vis their own governments, while we expect democratic government to represent the interests of the citizenry. In such conflicts, which interest or principle should prevail?
Some claim that the recent worry and flurry over legitimacy in international, political and legal theory might signal a certain conservatism, or a managerialist, technocratic notion of international politics. Martti Koskenniemi warns that this academic and political “legitimacy talk” mainly serves ideological functions, to mask power and its abuse:
‘the very notion of legitimacy is ideological inasmuch as its apparent openness dissimulates a substantive void that blunts legal and political criticism and lets power redescribe itself as authority on its own terms. The more there is debate about “legitimacy”, the more there is pure noise, and the less we are able to hear whatever critiques “law” or “morality” might offer.’ (Koskenniemi 2003, p.367)
Taking such warnings seriously, this volume nevertheless assumes that there may be more to legitimacy talk than pure noise, and that it may serve other social purposes than the ideological masking of power. At the same time, we assume that the social functions of legitimacy should be taken into account. As Ian Hurd reminds us, the sociological tradition regards legitimacy as a device to mitigate the threat that inequalities pose to social order:
‘Legitimation is one source of reasons for individuals to accept the existing inequalities in society as appropriate (or natural, or defensible). It does not eliminate the inequalities; rather it justifies them and reduces their political salience. In this light legitimacy is always a conservative force that acts to defend favored values against revolution.’ (Hurd 2008, p.203)
From a normative perspective, Buchanan and Keohane (2006) suggest that the ‘circumstances of legitimacy’ – that is, the circumstances under which questions of legitimate political authority arise – are situations in some sense beyond justice and self-interest: If an institution is legitimate, actors ought to comply with it, or at least not to interfere with it, even though it is neither perfectly just nor in full accordance with their self-interest. One might, arguably, even regard the circumstances of legitimacy as distinctly non-ideal. A common approach in recent political philosophy is to sketch principles of justice in ideal theory for a perfectly just society – that is, under the idealizing assumptions that everyone would act on those principles, knowing that others do the same, and that social conditions are favourable to realizing justice. Non-ideal theory, by contrast, relaxes the assumption of strict compliance and aims to formulate lower-level principles and rules to guide political decision-making “in circumstances – our own – in which there is only partial compliance with principles” (Sangiovanni 2009, p.221; cf. Farrelly 2007; Valentini 2012a; Hjorthen 2011). Adherents of the ideal theory approach argue that it takes logical priority to non-ideal theory, as it provides the only way to identify what is ultimately desirable and to know exactly which moral demands we fail meet in our less-than-perfect world (Jubb 2012). However, the ideal theory approach has been criticised for providing insufficient practical guidance, precisely because principles of justice designed for idealised circumstances of strict compliance seem to say little about what duties and obligations apply to us under less idealized circumstances of partial compliance. Especially, a skeptic may wonder what guidance strict compliance theory can provide for theorizing legitimacy, at least in so far as we conform to the standard definition of legitimate authority as a tri-partite right to rule, to be obeyed by subjects, and to coerce those who fail to comply (A. J. Simmons 1999). Thus defined, legitimacy is a concept of non-ideal theory. In particular, the legitimacy of international human rights regimes may seem to be a topic squarely located in the domain of partial compliance theory, as the need for institutions to protect individuals and minorities from rights violations would appear to arise only if we assume that individuals, governments and other agents sometimes, or even often, do notact as they ought, whatever we take the appropriate principles to be. In the words of Kwame Anthony Appiah, ‘many questions of justice only arise once people behave unjustly’ (cited in Galston 2010).