Human Rights Laws & the ‘Never Again’ Justification; Part II of IV

Human Rights Laws & the ‘Never Again’ Justification; Part II of IV

[This is Part II of IV of an article about whether human rights laws serve as an effective prevention against genocide and/or democide.  See here for Part I]

To what extent do legal instruments that are designed to protect human rights, reduce human rights violations?

Statistical studies have sought to measure a state’s human rights performance before and after a given treaty, for instance by considering incidents of torture pre and post accession to the Convention Against Torture.  The organisation Freedom House has sought to measure the extent of global freedom from the 1950s, refining their methodology in 1972, with each country or territory in the world being allocated a ranking, see here for an explanation of their methodology.

It can be concluded from the data compiled, that the effect of human rights instruments and in particular the International Covenant on Civil and Political Rights 1966, is negligible at best.[1]

Why is this?  Is the problem related only to defective enforcement, or is there something inherently problematic about the legal instruments in question and the supra national authorities that are associated with them?  Like international instruments, domestic laws are often vague and potentially contradictory, because the legislator finds it difficult to anticipate future events.  The domestic Courts and/or regulatory agencies will issue more detailed guidance as events unfold.[2] Where international Courts or agencies seek to provide an equivalent level of detailed guidance as events unfold, they do not command the same perceived legitimacy from individual states as domestic Courts or agencies; they are viewed as foreign institutions.[3] The problem is greater for international Tribunals other than the European Court of Human Rights, as that Court adopts a margin of appreciation.[4]

International Tribunals deliberately eschew any margin of appreciation as this would deprive them of their ability to condemn more than a handful of countries.  For example, the ECHR has invoked the margin of appreciation to allow states to refuse to recognise marriage between homosexuals but not to ban a gay pride march.  Yet if one considers the world as a whole, the majority of countries do not permit such marches to take place.[5]

Yet without a margin of appreciation or a genuine consensus on these issues, international tribunals simply lack perceived legitimacy and governments will not delegate authority to them on significant political matters.  Two examples that serve to illustrate the point are the resolutions adopted for ‘defaming religion’ (originally ‘defaming Islam) and for prohibiting capital punishment.  The former created widespread disagreement between Western and Islamic states and the latter simply resulted in many countries withdrawing from treaties that subjected them to the jurisdiction of international Courts.[6]

To conclude this section, whilst there may be an international consensus that genocide and democide are abhorrent, if the aforementioned legal instruments and supra-national authorities are to serve as a final safeguard against governmental abuse of power that can lead to genocide or democide, they would need to command a level of universal respect which they do not have and are unlikely to have in the foreseeable future.  They do not have such universal respect because there is a lack of worldwide political consensus on matters such as gender relations, treatment of sexual minorities and free speech.  Indeed, they could only achieve such universal legitimacy in a homogenous and deracinated world.



[1] See E. Posner ‘ The Twilight of Human Rights Law’ 2014 at C 4.2

[2] Ibid at C 5.4, p95

[3] Ibid at p95-97

[4] Ibid.  The ‘margin of appreciation’, refers to the Court not necessarily substituting its own judgement on matters of policy for the relevant governments and recognising that there is an acceptable range of opinion on whether a convention right can be infringed for policy reasons.

[5] Ibid 98 & 99

[6] Ibid at p99-102