Human Rights and the State
Summary and Keywords
The modern state’s role vis-à-vis human rights has always been ambiguous. States are the basic guarantors of human rights protections, just as they can be brutal violators of human rights. This basic tension is rooted in the very notion of statehood, and it pervades much of the literature on human rights. As the central organizing principle in international relations, state sovereignty would seem to be antithetical to human rights. Sovereignty, after all, is ultimately about having the last word; it is virtually synonymous with the principle of territorial non-interference. Meanwhile, humanitarian intervention would at first glance seem to be a contravention of state sovereignty. Yet not all observers interpret human rights pressures as a challenge to state sovereignty. Modern states can be highly adaptive, no less so when confronted with human rights demands. One of the principal, if overlooked, ways in which states have adapted to rising global human rights pressures is by creating new institutions. This is reflected in the formation of national human rights institutions (NHRIs): permanent state bodies created to promote and protect human rights domestically. These state institutions are remarkable due to their rapid and widespread proliferation around the world, the extent to which they sometimes represent a strategy of appeasement but nonetheless can be consequential, and their potential for domesticating international human rights standards.
Human rights issues are inextricably linked to the modern state. Conceptually, human rights are standards about the way the state should treat society; even when the state does not directly harm individuals, human rights typically denote the state’s duties to guarantee human rights. National constitutions and regulations long have enshrined the human rights obligations of states, just as more recent international human rights laws and organizations define the appropriate contours of state action. At the same time, the state is often behind the worst human rights violations – directly repressing people; standing by idly while they are abused; or failing to provide them with basic staples like food, health care, and other essentials of human dignity and security. This complex, Janus-faced image of the state pervades human rights scholarship, and it makes the subject of human rights inescapably political.
This essay explores the various ways in which scholars conceptualize the relationship between the state and human rights. It does not depict a coherent body of scholarship so much as a partially related set of claims and assumptions that together encompass a broad range of work. These claims revolve around concepts of statehood, shifts in sovereign authority, varieties of states, and institutional adaptation. The essay opens with a historically grounded discussion of the relationship between the modern state and human rights, before moving to examine the extent to which evolving human rights norms challenge traditional notions of state sovereignty. The essay then reviews how varieties of states, linked to particular preferences and capabilities, are used to explain human rights practices; and it details how institutionalist analysis can advance this body of research. A subsequent section explores the adaptive nature of the state, which has set out to create innovative state agencies – national human rights institutions – largely in response to critiques of its performance. A final section reflects briefly on the implications of state complexity for the study of human rights.
If the state is integral to understanding human rights practices, it is essential to take stock of the multiple ways in which state actors and structures intersect with human rights. It is also crucial to place both the state and human rights in their broadest context, as contested and fluid concepts operating alongside societal forces and competing standards. The state is indeed connected so intimately to human rights that its role has often been taken for granted, assumed to be either the benevolent source of rights or an abusive and exploitative power. Problematizing the state–human rights nexus reveals a more complex picture, where change is highly constrained but partial reform remains possible.
Human Rights and the Janus-faced State
The modern state’s role vis-à-vis human rights has always been ambiguous. States are the basic guarantors of human rights protections, just as they can be brutal violators of human rights. This basic tension is rooted in the very notion of statehood, and it pervades much of the literature on human rights. Yet despite the centrality of the Janus-faced state in history and scholarship, the human rights field still lacks anything resembling a theory of the state.
The image of a state variously playing the role of human rights guarantor and violator arises from elemental conceptions of the modern state (Vincent 1986; Held 1989; Donnelly 2003). From a Hobbesian perspective, individuals enter into the social contract knowingly trading some of their freedom for the state’s protection. The Weberian state, in turn, is defined partly by its monopoly over the legitimate use of force; the tools of repression are squarely in the hands of state agents. And in liberal democracies the state’s coercive powers are foundationally necessary for protecting the primacy of individual rights (Howard and Donnelly 1986). Marxist conceptions of the capitalist state characterize it as the handmaiden of economically powerful classes, inherently opposed to economic and social equality and predisposed to accept some rights violations for economic gain (Nordahl 1995). Historical processes of state formation also reproduce contradictory human rights practices (Barzel 2002). States, often forged through war and violence (Tilly 1992), are empowered to violate rights under certain conditions. These conditions, or exceptions, are frequently stipulated in modern constitutions, which traditionally have prioritized national security interests and state stability over the rights of individual citizens (Svensson-McCarthy 1998; Agamben 2005).
These dynamics have persisted historically even as the relationship between the state and human rights has evolved. Certainly, the relative balance between state authority and human rights has shifted over time. Human rights standards have gradually broadened in scope, covering a wider spectrum of rights and groups deemed worthy of protection – but always against the backdrop of a conflicted state unwilling to provide full equality. These tensions are evident throughout history: absolutist states of the sixteenth and seventeenth centuries that embraced Enlightenment ideals (Anderson 1979), themselves intellectual precursors of contemporary norms; liberal eighteenth and nineteenth century states that recognized selectively the rights of organized social groups (Hunt 2007; Headley 2007); and mid-twentieth century states that forged an ambitious postwar international human rights architecture often falling short of expectations (Ishay 2004). Even as the state has become more inclusive over time in guaranteeing some human rights, it has never desisted from violating other rights.
Despite the apparent trend towards greater inclusion, the state’s interest in human rights has always been partly strategic. As social groups have reacted to the exclusionary policies of the state, demanding that equal treatment be extended to a broader array of people, the state has sometimes accepted human rights standards. In so doing, the state’s embrace of human rights norms (or its change in methods of violence) has been mostly an attempt to control moral discourse, co-opt civil society, and maintain political legitimacy (Ron 1997). The state still seeks to retain its monopoly over the legitimate use of force, i.e., its right or authority to use violence. By emphasizing the state’s obligations to society, human rights standards merely permit the state to claim it is ruling by consent, in the process appeasing domestic and international critics.
Consequently, the historical expansion of human rights as legitimate state discourse has continued to occur alongside the exclusionary tendencies of the modern state. Using nationalism and citizenship to demarcate the boundaries of political community, states effectively exclude certain categories of people from rights protection: others, foreigners, outsiders (Arendt 1966; Benhabib 2004). Once groups are excluded domestically, it can become appropriate and even expedient to violate their internationally recognized rights. Ongoing human rights abuses are thus endemic to the modern state, which in its liberal and democratic (even multicultural) variants has always treated certain groups within its borders as less equal than others. Insofar as human rights standards are axiomatically inclusionary, entitling groups of people to protection, human rights violations are inherently exclusionary (Baxi 2006). No state has yet to be free of human rights abuses, of one sort or another, of violations to some degree or another.
The Janus-faced nature of the state is most blatant in the face of hypocrisy – when, despite the state’s capacity to comply, a gap exists between international standards and actual practices. The conventional wisdom most often attributes hypocrisy to individual state characteristics. For example, non-democracies are viewed as being much more prone to hypocrisy, eager to silence critics but unwilling to meet human rights demands. Likewise, powerful states that can afford to be exceptionalist also can be hypocritical (Ignatieff 2005; Mertus 2008). State hypocrisy, however, is by no means confined to illiberal or exceptionalist states. Rights violations and protection are part and parcel of the modern state’s strategic use of force and morality to retain social control.
As the central organizing principle in international relations, state sovereignty would seem to be antithetical to human rights. Sovereignty, as depicted by Jean Bodin in the sixteenth century, is ultimately about having the last word; it is virtually synonymous with the principle of territorial non-interference, enshrined in Article 2 of the United Nations Charter. International human rights standards, in contrast, impose far-reaching obligations on states about how to treat those within their borders. When states fail to meet these obligations, they potentially face a range of punitive measures, including forcible intervention in extreme cases. Humanitarian intervention itself (Wheeler 2000; Welsh 2004; Bass 2008) would at first glance seem to be a contravention of state sovereignty. Yet not all observers interpret human rights pressures as a challenge to state sovereignty: for some, as outlined below, state sovereignty remains intact and human rights concerns are epiphenomenal; for others, sovereignty is a complex and evolving phenomenon, irreducible to a single set of effects.
The standard view sees human rights as a direct challenge to state sovereignty. Human rights norms, after all, demand that states treat people within their borders humanely or risk the consequences. States can in turn respond to transnational pressure by changing their human rights practices. Ann Marie Clark in her study of Amnesty International thus contends: “The idea of human rights challenges state sovereignty by imposing international standards of protection for individual citizens from cruel or arbitrary treatment by governments” (Clark 2001:10). Kathryn Sikkink (1993) also views the broadening scope of human rights reforms as evidence of the gradual, if partial, erosion of state sovereignty. More recently, the fact that norms of state recognition now include human rights criteria also seems to challenge sovereignty. States, that is, are less inclined to recognize a state unless it meets basic human rights conditions; at stake can be diplomatic and economic relations and the willingness of an international organization’s members to accept new peers. Still other scholars emphasize how human rights treaties entail “sovereignty costs,” as states voluntarily cede authority to external actors over their internal behavior (Moravcsik 2000).
From a normative perspective, human rights advocates and their allies have derided state sovereignty. Legal scholar Louis Henkin famously referred to sovereignty as the “S word,” which he saw as a fundamental obstacle to human progress and values: “Away with the ‘S’-word,” he declared (Powell 2008:62–4). This view can underlie support for the vigorous promotion of human rights abroad, including with force if necessary. Others warn that traditional notions of state sovereignty are inadequate for addressing dislocations caused by war and globalization (Phuong 2004:208–31). Accordingly, the rise of transnational migration, refugee flows, and stateless persons confounds the capacity of today’s states to protect those in need. As long as human rights violations persist, states are implored to cede some of their sovereignty.
Yet it remains far from clear whether the human rights order created in 1948 fundamentally challenged the Westphalian notion of state sovereignty established 300 years earlier in 1648 (Donnelly 2004). Realists are often dismissive of the transformative role of human rights norms, noting that state sovereignty remains the bedrock of international stability. Even while recognizing the influence of human rights, Stephen Krasner (1999) labels the international state system one of “organized hypocrisy.” Likewise, while the prosecution of individuals for human rights crimes is often hailed as a recent example of changes in state sovereignty, some scholars depart from this view of prosecutions, seeing state sovereignty as alive and strong (Sriram 2006):
Rather than supplanting the norm of sovereignty and bolstering the norm of human rights and individual accountability, the norm of justice has mutated in directions that recognize the right of states, especially powerful states, to exert control over the terms of justice […] Overall it appears that state sovereignty, exercised according to the dictates of the logic of consequences, is playing a central role in the employment of international justice mechanisms.
(Snyder and Vinjamuri 2003/4:40–1)
Others draw on a cultural relativist argument and on resistance to Western human rights standards to argue that human rights norms have not been globally transformative (Caney and Jones 2001; Mutua 2002). Jack Donnelly captures the broader view: “Rather than 1948 challenging, let alone triumphing over, 1648, the society of states has made space for human rights within the practices of state sovereignty” (2004:1–2).
Recognizing the complex nature of state sovereignty, some scholars take a more ambiguous position. Richard Falk (1981; 2000) aptly describes the contingent relationship between state sovereignty and human rights:
The main point is that sovereignty and human rights are linked in complex, contradictory ways. Sovereignty can serve as a shield and pretext to enable a government to engage in abusive behavior toward its own citizenry. At the same time, however, it can also protect a progressive government that is committed to promoting the economic, social and cultural well-being of its people against a geopolitically motivated intervention that seeks to exert pressure on a weaker state. Because of this dual nature of sovereignty, with its many variations, the issues raised about the relations between sovereignty and human rights in any particular case should always be considered in their broader context. At this stage of development in international society, sovereignty may work for or against human rights depending upon the circumstances.
For Christian Reus-Smit, sovereignty and human rights are “two normative elements of a single, inherently contradictory modern discourse about legitimate statehood and rightful state action” (2001:519). Consequently, human rights demands may challenge sovereignty in some ways but not others (Cardenas 2002). Internally, for example, states may respond to human rights pressures with largely symbolic gestures without actually reducing violations; at the same time, even symbolic state responses can have unintended, and potentially beneficial, longer-term consequences. Externally, humanitarian intervention may seem a dramatic incursion of state sovereignty, yet in practice the consequences for human rights protection may be far from uniform (Ayoob 2002; Kennedy 2004; Cohen 2008; Kuperman 2008). If both human rights and sovereignty are contested concepts, reflecting conflicting claims made at specific historical moments, there is no reason why human rights norms should automatically challenge or trump state sovereignty.
The debate over human rights and state sovereignty is especially significant in revealing analytical blind spots and related policy implications. Those who see sovereignty and human rights as oppositional forces may overlook the importance of working with state actors to secure human rights compliance or the ways in which protecting rights may advance state interests. Those who assume that human rights developments signal the transformation of sovereignty may exaggerate progress while overlooking the persistence of less obvious but no less pernicious abuses. Mid-range theorizing may be in order.
The next phase of human rights research on state sovereignty, therefore, needs to continue investigating more fully how notions of state sovereignty and human rights have evolved in mutually constitutive ways, shaping and constraining each other (Reisman 1990; Charvet 1997; Barkin 1998; Mills 1998; Bennoune 2002; Levi and Sznaider 2006; Weinert 2007). Studying human rights abuses and rights claims that occur at the interstices of shifts in territoriality and state borders (e.g., immigration, environmental degradation, technology and capital flows in the context of globalization) also promises to be productive (Brysk 2002). Rather than establishing the triumph of either human rights or the state, international studies needs to take seriously the concrete yet changing ways in which state and personal sovereignty intersect and interact.
Unbundling the State
The emerging field of human rights, both in its academic and activist dimensions, has been centrally preoccupied with state practices – documenting, explaining, and transforming them. Not surprisingly, at different times and in somewhat differing ways, the research in international studies has viewed the state both as part of the problem and as solution. Future work will have to look more closely at the intersection of the state as problem and solution, further unbundling the concept of the state and exploring the conditions and contingencies that produce complex human rights outcomes.
Three Waves of Scholarship
Peter Evans (1992), writing about political economy in the early 1990s, identified three waves of research on the state. According to Evans, during an initial heyday of development, the state was seen as the cure-all for economic restructuring around the world. In a second wave of scholarship, sobered by the travails of state-led developmentalism, a more pessimistic view of the state emerged. Evans and others called on scholars, in a third research stage, to focus more closely on the complexities of the state and its potential to be both problem and solution.
Human rights scholarship has followed an inverse path, but arrived at a similar conclusion. The first wave of human rights scholarship, evident during the Cold War, treated the state mostly as problem, mirroring real-world concerns. For a nascent human rights movement and field in the 1960s through the 1980s, the principal task was to analyze embryonic international mechanisms and entrenched state violations. The period saw the emergence of non-governmental organizations (NGOs) devoted to human rights, important advancements in foreign policy mechanisms to promote rights abroad, and the relatively impressive evolution of international institutions (for a general overview, see Schmitz and Sikkink 2002; on the history of the period, Moyn, in press). These developments occurred in the context of a polarized Cold War climate, marked by intense state repression and social activism, postcolonial states facing basic governance challenges, and growing perceptions of transnational interdependence. Against this backdrop, the state was viewed as the principal problem facing human rights, and this was reflected overall in the emerging study of human rights. Even when examining the role of international institutions or foreign policies, as numerous studies did, the emphasis was still on how states constrained international action and how international actors might curtail state abuses.
The second wave of human rights research, post–Cold War, was more enthusiastic about the state and the possibilities for reform. The end of the Cold War had brought rising democratization around the world, including to regions like Eastern Europe and Latin America that had previously seen egregious rights abuses (Diamond and Plattner 1996; Whitehead 1996; Thomas 2001). While transnational actors and moral entrepreneurs were viewed as the main engines of human rights transformation, the assumption was that the state could be reformed both from within and from without. Democracy was widely viewed as a necessary, if insufficient factor for human rights progress. Accordingly, scholars set out to explain the sources of human rights protection (Poe and Tate 1994; McCormick and Mitchell 1997; Poe et al. 1999; Cingranelli and Richards 1999) and especially the role of nonstate actors and transnational pressures (Keck and Sikkink 1998; Risse-Kappen et al. 1999; Burgerman 2001). If the state had been demonized during the first wave of human rights research, it was now depicted as reformist – capable of changing its practices given the right amount of pressure from above (internationally) and below (domestically) (Brysk 1994).
A third wave of research, post–September 11, and the launching of a “global war on terror,” has had to temper its optimism about the apparently straightforward effects of democracy (Hagopian and Mainwaring 2005) and the global diffusion of human rights (Campbell et al. 2001; Gould 2004; Gearty 2006). As the new millennium introduced concerns about nonstate terrorism, states responded with counter-terrorist policies that often assailed human rights (Wilson 2005; Brysk and Shafir 2007). Partly an extension of past research agendas and partly a reaction to observed incongruities in the world – the fragility and incompleteness of human rights progress, even in democracies; the resurgence of national security dynamics reminiscent of an earlier Cold War era; and persistent gaps between human rights standards and actual protection – the newer scholarship discussed below has treated the state as a more complex actor, tracing human rights practices to particular state characteristics.
Varieties of States
Human rights research long has recognized that various kinds of states are most closely associated with human rights protection. Varieties of states (Schmidt and Westrup 2008) refer here to a range of institutional features: domestic structural characteristics, including the basic form of governance connecting state and society; linkages to transnational structures, cultural and economic; as well as individual components of the state apparatus (e.g., coercive agencies and the legal system). These structural characteristics shape the state’s preferences and capacities, producing variations in human rights performance.
Normative political theorists have elaborated the connections between notions of rights and varieties of states. Most commonly, human rights standards have been cast as a Western construct, protected most fully in liberal, democratic welfare states (cf. Arat 2008). As Jack Donnelly observes:
The legitimate state, as specified by internationally recognized human rights norms, is liberal: the state is seen as an institution to create the conditions needed to realize the rights of its citizens. It is democratic: political authority arises from the sovereignty of the people. It is a welfare state: economic and social rights extend well beyond the right to property. And all three elements are rooted in the overriding and irreducible moral equality of all members of society.
The assumption is one of normative convergence between the central purposes of the state and internationally recognized human rights standards.
Empirically oriented scholars have amassed a large body of evidence showing that a close relationship indeed exists between the degree of democracy and human rights performance, both in terms of state violations (or protection) and state commitments to accept human rights treaties (e.g., Davenport and Armstrong 2004; Davenport 2007; Simmons 2009). Substantively, democracies are said to enshrine principles of popular sovereignty and equality, fundamental to the respect of human rights. Procedurally, democracies purport to give members of society access to the state via participation and representation, and they facilitate the peaceful resolution of conflicts (Goodhart 2005). The most common profile of a rights-protective state, then, is one that is at least minimally liberal and democratic (deemed crucial for civil and political rights) as well as welfare-oriented (in the case of economic and social rights).
States can also be classified in terms of their embeddedness in broader cultural units, with important implications for the protection of human rights (Bell et al. 2000; Cowan et al. 2001). Invoking cultural assumptions about the state, some human rights research has adopted a region-specific approach. The “Asian-values” debate, for example, highlights particular cultural notions that challenge international human rights norms, including the primacy of the state over the individual and a willingness to trade civil and political rights for economic and social rights (Sen 1997; Bauer and Bell 1999). Cultural arguments are also used to explain the departure of non-Western states in Africa and the Middle East from international human rights standards, leading some scholars to chart a more nuanced view (regarding Africa, see Howard 1986; An-Nàim and Deng 1990; for the Middle East, Chase and Hamzawy 2006; Mayer 2006).
In other cases, a state’s attributes derive from its position in the global political-economic context. Accordingly, countries with less developed economies are said to be more subject to social conflict (since they are unable to meet basic social demands) and less capable of human rights compliance (insofar as they cannot afford to initiate costly reforms). Alternatively, powerful hegemonic states can arguably afford to be exceptionalist, opting out of international human rights institutions without suffering severe consequences. At the very least, a state’s links to the global economy define and constrain its human rights options (Mitchell and McCormick 1988; Henderson 1991; Poe 2004; Hafner-Burton 2005; Abouharb and Cingranelli 2007; Kinley 2009).
Some human rights scholars have zeroed in on the role of the state apparatus itself. Much of this work has looked to the coercive arm of the state, including military, police, and intelligence agencies, as well as clandestine death squads responsible for state terror (e.g., Schirmer 1999; Sluka 1999; Policzer 2004); other studies have examined the judicial system (e.g., Schedler et al. 1999:part 3; Morison et al. 2007). In general, the focus has been on how these actors contribute to human rights violations or how professional training and organizational reform can lead to human rights improvements. Emerging work on domestic legal systems calls particular attention to the rule of law, deemed an integral component of a rights-protective, transparent, and accountable state (Simmons 1998; Risse-Kappen and Sikkink 1999; O’Donnell et al. 2004). There is also growing recognition that, among democracies, rule of law (more so than elections) is a central organizing principle underlying long-term respect for human rights (Domingo 1999; Roth 1999; Diamond 2002). Likewise, the distinction between civil and common law systems may be significant, providing states with differential incentives for accepting human rights treaties and incorporating international standards domestically (Simmons 2009). The role of national constitutions (Perry 1982; Keith 2004; An-Nàim 2006), bills of rights (Alston 1999), and constitutional courts (Sweet 2002) are other parts of the state’s legal apparatus relevant to human rights practices, though far more systematic work needs to be done to sort out their effects.
Existing research therefore identifies a range of characteristics that can shape the state’s human rights practices. Where these features collapse, state failure may result with dire consequences for human rights (Rotberg 2003). Overall, then, the state’s differential preferences and capacity in the human rights arena can reflect basic forms of governance, including the type of regime; transnational cultural and economic linkages; and constituent parts of the state’s organizational apparatus. Human rights research has indeed gone a long way toward unbundling the state and identifying how different state characteristics correlate with state practices. States are consequently viewed as part of the problem or solution depending on the state characteristics in question. Taking the state seriously by parsing it into its various components has been an essential step forward in the study of human rights, opening the way for still more complex and satisfactory accounts of state practice.
Insights from Institutionalism
Once the state is disaggregated, it becomes possible to explore new institutional dynamics. Doing so may shed light on how state characteristics themselves change, why variance among states with similar attributes persists, and why state institutions do not always lead to their desired outcomes. Adopting an institutionalist perspective, widely used outside of human rights studies, thus provides a way of supplementing and synthesizing existing approaches. (For overviews of institutionalism, see Rhodes et al. 2006.) In the case of human rights, such an orientation can point to historical trajectories and mediating domestic structures, as well as policy linkages, the role of ideas, and the state’s embeddedness in society.
First, a more historically grounded conception of how varieties of states have emerged is necessary for grasping processes of human rights change. In emphasizing the importance of particular state configurations, especially democracy, human rights studies have sometimes adopted an ahistorical and static view of the state. While quantitative studies have established empirically that human rights protection is generally highest where democracy is strongest, they do not address the deeply contingent (and often conflictual) processes by which democracies are forged. Likewise, for studies that view the state largely in cultural terms, as inherently compatible or not with Western notions of human rights, the state can be a monolithic and largely unchanging entity. A much deeper understanding of institutional origins, showing how basic state attributes are constructed over time, can act as a corrective. Even quantitative studies, after all, recognize an element of recursivity and institutional feedback, leading them to model the effects of “past repression” (i.e., current repression lagged by a few years) when explaining rights violations (Davenport 1996). Extending this insight historically, processes of state formation and consolidation could help to explain how the contemporary state – partly through a path-dependent logic – is (in)capacitated to protect human rights (Howard 1986:90–112; Landman 2006:29–30). Grounding particular conceptions of the state in a specific historical trajectory, moreover, can show both the difficulty of overcoming past institutional legacies and the constructed nature of even seemingly intractable practices. If the goal is to understand human rights change, as it increasingly is, then the weight of history must be taken into account.
Second, cross-national comparisons of similarly situated states – with like forms of governance, cultural identity, and global economic integration – may help clarify otherwise puzzling outcomes. While linking particular state attributes to human rights practices has been a valuable first step, it remains unclear why human rights practices can vary significantly across the same categories. Recent studies nonetheless indicate that domestic political institutions may be part of the story. James Vreeland (2008), for example, argues that different types of dictatorships help to explain variations in torture: namely, multiparty dictatorships permitting power sharing are more prone to resort to torture. Other scholars have begun examining differences across democracies, questioning the assumption that democracies uniformly respect human rights (Bueno de Mesquita et al. 2005; Davenport 2007; Rejali 2007). And while regional contagion has been shown to be a powerful determinant of both human rights violations and commitments (e.g., Cardenas 2007; Simmons 2009), subregional comparisons may illuminate the extent to which domestic political factors actually mediate regional influence. The same holds true for similarly poor or wealthy countries, which can vary enormously in the human rights protections they offer despite comparable economic circumstances. Looking inside the black box of the state also promises to produce more effective policy recommendations, including by revealing the domestic conditions under which democracy or economic development can be promoted most successfully.
Third, scholars can build on existing research to explore cross-linkages between different facets of state practice. For example, a consensus exists that all human rights are interdependent, and scholars now are beginning to conceptualize systematically previously neglected economic and social rights (Hertel and Minkler 2007). Yet in practice, few studies have examined the linkages between the state’s abuse of civil and political rights (e.g., repression) and economic-social rights (structural violence), just as few have compared these state practices systematically to determine whether they have common institutional origins or targets (cf. Abouharb and Cingranelli 2007; Pogge 2008). Likewise, a burgeoning debate exists over the relationship between states’ human rights commitments (treaty acceptance) and state violations (Keith 1999; Hathaway 2002; Goodman and Jinks 2003; Landman 2005; Neumayer 2005; Hafner-Burton and Tsutsui 2007), but there is room for much more theorizing of the potential causal mechanisms linking commitments and violations. Here too, institutional analysis may offer relevant clues about domestic change.
Fourth, more work can be done to map out the ideological dimensions of the state, tracking the subtle ways in which ideology impacts rights claims. Institutions like the state have material as well as ideational or symbolic dimensions, yet the state in human rights studies is treated most often in rationalist terms, as a unitary actor calculating whether or not to protect human rights. Ideas and discourse are discussed mostly in terms of transnational advocacy networks and moral entrepreneurs who deploy images and symbolic power to persuade others. States, accordingly, can become entrapped by their own speech acts and communicative dynamics with nonstate actors, leading in some cases to real human rights change (Risse 2000). But the ideas motivating the state itself and defining its social purpose have received far less attention, with the exception of a few studies examining the role of National Security Doctrine during the Cold War (e.g., Fitch 1998), neoliberal economic ideas (Pion-Berlin 1989), and, more generally, the importance of exclusionary ideologies (such as racism, sexism, homophobia) that marginalize people based on perceptions of national identity or security (Sikkink 2004:85–6; Cardenas 2007:29–31). These ideologies are most influential when they are institutionalized domestically – propagated and transmitted inter-generationally – in contrast to the individual belief systems that motivate specific leaders. Understanding the ideological underpinnings of the state may be especially significant for explaining the persistence of human rights violations, including the targeting and exclusion of particular groups of people.
Finally, institutionalist analysis suggests drawing much closer linkages between the state and societal actors. Human rights studies have often depicted the state in insular terms, but broader research shows that the state is in fact highly interpenetrated by society (Evans 1995; Migdal 2001). Certainly, even the most coercive states rely on broader social coalitions to remain in power. And while domestic human rights NGOs often oppose the state, issues of funding and co-optation can blur the lines between the two actors (Andreopoulos et al. 2006; Mutua 2008). The state’s social embeddedness therefore needs to be factored into any human rights analysis.
Insofar as human rights research now offers a more complex view of the state, the next wave of research could draw productively on institutionalist insights to elaborate theories of the state. In particular, there is space for deeper historical analysis, cross-national comparisons, elaboration of underlying causal mechanisms, and recognition of the social and ideational nature of the state. Institutionalism further suggests greater cross-fertilization across disciplines (e.g., political science and history), subfields (e.g., international relations, comparative politics, and political theory), as well as qualitative and quantitative methodologies (Cesarini and Hertel 2009; Hafner-Burton and Ron 2009). If the Janus-faced state is both problem and solution for human rights, understanding changing practices will require viewing the state in its broadest institutional context.
Institutional Adaptation: The Case of National Human Rights Institutions
Modern states can be highly adaptive, no less so when confronted with human rights demands. One of the principal, if overlooked, ways in which states have adapted to rising global human rights pressures is by creating new institutions. This is reflected in the formation of national human rights institutions (NHRIs): permanent state bodies created to promote and protect human rights domestically (Reif 2000; Cardenas 2001; Hossain et al. 2001; Ramcharan 2005; Smith 2006; Murray 2007; Mertus 2009; Cardenas, in press). These state institutions are remarkable due to their rapid and widespread proliferation around the world, the extent to which they sometimes represent a strategy of appeasement but nonetheless can be consequential, and their potential for domesticating international human rights standards.
NHRIs take various forms, with the most common types consisting of national human rights commissions, national ombudsman offices, and hybrid models combining the commission-ombudsman features. While these institutions vary substantially in terms of their functions, their main tasks tend to be the protection and promotion of human rights. On the protective side, the goal is essentially to respond to human rights violations by offering victims of abuse certain guarantees. This subset of regulatory activities can take various forms, including handling complaint procedures, whereby victims submit allegations of abuse; conducting investigations and recommending remedies; compiling annual reports of state compliance; and sometimes participating in legal proceedings and offering compensation. Despite this array of activities and differences in institutional configurations, NHRIs do not tend to have substantial enforcement powers, most often limited to issuing recommendations that the executive power is free to disregard. On the promotional side, the principal function of NHRIs is to support human rights education (Cardenas 2005), defined generally as the diffusion of human rights standards in school curricula and professional training (both of state and nonstate actors).
The historic diffusion of these state institutions, now spanning approximately 100 countries, reflects the influence of international standards and assistance. While some NHRIs existed before the 1990s (and the modern ombudsman model itself dates to the nineteenth century), the vast majority of these state institutions were created after the Cold War. In particular, the 1993 World Conference on Human Rights in Vienna produced the Paris Principles, an authoritative document that defines the basic requirements of effective and legitimate NHRIs, including criteria of independence from the executive and representativeness of society. By means of an International Coordinating Committee, with rotating membership comprising geographically diverse NHRIs, these human rights institutions are accredited internationally. In addition to international guidelines about establishing NHRIs, international organizations like the United Nations offer valuable technical assistance to states creating or strengthening NHRIs (Cardenas 2003b).
These unique state institutions have also clustered regionally and subregionally to form over a dozen transgovernmental networks (Cardenas 2003a; Shawki 2009). In contrast to the transgovernmental networks that have formed among national judiciaries, central bankers, and state regulators (Slaughter 2004), human rights issues have been dominated by transnational networks of nonstate actors. The global diffusion of NHRIs nonetheless changes this, creating a dense web of networks of state institutions for human rights.
The actual effects of NHRIs are complex, reflecting states’ mixed motives in forming these institutions. In many cases, the evidence suggests that states were responding largely to domestic and international human rights pressures when they adopted these institutions. Accordingly, institutional creation reflects strategic calculations more than a shift in the state’s normative commitments, leading to institutions that are nominally weak. Even in these cases, however, the promotional and symbolic work of these institutions has sometimes had unintended consequences. From increasing social demands and expectations to redefining the state’s human rights agenda, NHRIs can alter the domestic landscape in ways that cannot be dismissed readily.
The creation of bureaucratic-administrative state institutions devoted to human rights is historically significant. On the one hand, these institutions – often part of a broader process of democratization – confirm the state’s centrality for protecting and promoting human rights (Reif 2000); they reveal a “self-restraining” state that can be part of the solution (Schedler et al. 1999). On the other hand, NHRIs are not always a panacea for human rights problems, insofar as they are not actually independent of the government, lack sufficient resources, or remain isolated from crucial social sectors. In cases where NHRIs lack credibility but human rights demands are on the rise, there is even the potential for perverse and destabilizing domestic consequences (Cardenas 2001; 2003a; 2003b). The state under such circumstances can remain very much part of the problem. Despite these mixed effects, mirroring the historically ambiguous role of the state, the rise of NHRIs shows how the state has adapted to growing criticism and demands for self-regulation by creating new human rights institutions.
These human rights institutions challenge the overwhelming image of the state in international studies. The focus on nonstate actors like transnational networks has led the state to be depicted largely as a passive agent of change, entrapped in its own concessionary rhetoric or pushed reluctantly by others to change its behavior (Weiss 1998). The state is viewed as powerful and aggressive only when it is abusing rights; then it takes a very deliberate and calculated stance. But the broader process of human rights change also includes a state actively seeking to appease and co-opt critics while retaining control over the political agenda. These state actions, moreover, can be driven by an institutionalized and powerful ideational logic. This view of an active, adaptive state is amply evident with the rise of NHRIs. Regardless of state motives, NHRIs show the state as both socializer and socialized: socializing domestic groups, only some of whom it also represents, while being socialized by international actors (Goodman and Jinks 2004). Institutionally, it is an intriguing instance of state adaptation to changing demands for human rights protection.
Human Rights, the State, and Complexity
Despite the centrality of the modern state for understanding human rights practices, most scholarship in this area has focused on challenges from below (societal responses to human rights abuse) and regulatory efforts from above (the evolution and impact of international human rights institutions). The state itself features tangentially, whether as the source of violations or the locus of reform. Perhaps most surprisingly, relatively little effort has been made to theorize the state’s complex role vis-à-vis human rights or to assess how the state’s power, ideational commitments, and social bases interact to produce institutional change.
A basic point of departure is to recognize that in the human rights domain, the Janus-faced state is ontologically driven. Even if the discourse of human rights is relatively new, notions of rights, coercion, and welfare have been basic features in the state’s evolution. While the scope of rights – in terms of both guarantees and beneficiaries – has expanded historically, the state’s dual reliance on moral discourse and violence to exercise its rule has been a staple feature. Human rights has long fit this depiction, as the state alternates and negotiates its twin role of protector and violator.
If the state is inherently complex in its orientation toward human rights, the implications for the study of human rights are substantial. State complexity challenges some conventional biases and inclinations: a utopian faith in human rights progress, assumptions of global–local convergence, and occasional moral arrogance and sentimentality. State complexity suggests instead the importance of a critical approach, treating human rights as a constructed and contested concept prone to state manipulation and abuse – whether in silencing critics, colonizing people, or crafting empires (Douzinas 2007). The state’s complex historical role also necessitates looking beyond apparent improvements and back to first principles: Which actions constitute wrongdoing? Which abuses remain invisible or persist? And who is excluded from conceptions of humanity? Changes that do occur, whether evident in individual state behavior or in apparent shifts in state sovereignty, should be treated as contingent and impermanent.
The “state” in international human rights studies has undergone a gradual revitalization – from being largely demonized during the Cold War to a brief flirtation with triumphalism in the 1990s and more recent attempts to grapple with ambiguity in the new millennium. While political theorists long have studied the state and notions of rights, theorizing about the state per se has not been altogether common in the research on human rights. Even when the state features in accounts of human rights change, it does so mostly parenthetically or as a passive agent of reform. The challenge now is to find ways of incorporating the state’s endemic complexity and apparent contradictions directly, without cynicism or effusiveness, into the study of international human rights.
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Links to Digital Materials
Human and Constitutional Rights. At www.hrcr.org/, accessed May 20, 2009. A searchable database of bills of rights and human rights in national constitutions.
Mapping the Justice Sector. At www.ohchr.org/Documents/Publications/RuleoflawMappingen.pdf, accessed May 20, 2009. A UN publication from 2006, providing rule-of-law tools for post-conflict states. Based on lessons learned by UN staff on the ground. Reviews the role of courts, law enforcement agencies, and prisons, and includes a discussion of linkages among these state institutions.
National Human Rights Institutions. At www.nhri.net, accessed May 20, 2009. A comprehensive website devoted to national human rights institutions. Includes all relevant documents, lists of national institutions by regions, and searchable databases.
National Plans of Action for the Promotion and Protection of Human Rights. At www2.ohchr.org/english/issues/plan_actions/index.htm, accessed May 20, 2009. Links to two dozen countries’ national human rights action plans. The United Nations has encouraged countries to develop these plans since the early 1990s, outlining specific steps they will take to promote and protect human rights.
Police Reform and Human Rights. At www.undp.org/governance/docs/HR_Pub_PoliceReform&HR.pdf, accessed May 20, 2009. A United Nations case study of police reform and human rights, dating to July 2004. Summarizes expert findings and looks at ten country case studies.