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СКАЧАТЬ movement and the increasing importance of the concept in national and international politics have brought about an ever-increasing literature in various social sciences. The explanation of variations in respect for human rights in different societies has become an object of extensive social-scientific investigation. It is sometimes said that gross human-rights violations – such as genocide – are ‘irrational’ and beyond scientific explanation. There is, however, a body of knowledge about state behaviour, ethnic diversity, repression, rebellion and social conflict that may explain a great deal about such actions. There is much controversy about theories and methodology in the social sciences, but there is no reason why behaviour that violates or respects human rights should be less explicable than other complex social phenomena. Those who assert that the worst human-rights violations are inexplicable conflate extreme immorality with scientific unintelligibility.

For some human-rights academics and activists, the discourse of human rights is primarily legal and technical, and lawyers properly play a leading role in the field because they are the technical experts. The legal approach is attractive because human-rights law appears to provide objective standards that protect the concept of human rights from moral and political controversy. This appearance is, however, illusory, for the meaning and application of human-rights standards are legally and politically very controversial. International human-rights law is made, interpreted and implemented by governments that act from political motives. NGOs, which have come to play an increasingly important role in the making of human-rights law, monitoring its implementation and campaigning for improved human-rights performance by governments, are political actors, even if they appeal to legal standards. Important human-rights advances and setbacks – such as the replacement of dictatorships by democracies in many countries at the end of the twentieth century, or the rise of authoritarian populism in recent years – have been primarily political events.

      Just as social scientists, with their aspiration to be scientific, neglected human rights until recently, so too the academic discipline of international relations showed little interest in the idea, since the discipline was concerned with states and their relations with each other, to which human rights were considered to be at most marginal. An influential theory was that of Realism, which has been primarily concerned with the interests and power of states rather than with such ethical issues as those of human rights. But as human rights played an increasing role in real international relations, so it entered the academic discipline. Some international relations scholars have challenged the Realist school by emphasizing the role of ideas in general, and of human-rights ideas in particular, in international politics, and there are several alternative theoretical approaches in the field (Jackson, Sørensen and Møller 2018). Realism, however, still presents a strong challenge to human rights (Donnelly and Whelan 2020: 40–2).

There are two principal alternatives to the legal conception of human rights. The first conceives of human rights as fundamental moral rights and then proceeds to consider that they may need legal and/or political protection. The second holds that human rights are political constructions and do not derive from any particular moral philosophy. International human-rights law is concerned primarily with the obligations of governments and the rights of citizens. Political theory is the discipline that seeks to explain and evaluate the relations between governments and citizens. Political science is the discipline that describes and explains the variations in the degree to which governments respect their citizens’ rights. Political scientists have studied human-rights issues with the use of related concepts such as ‘dictatorship’, ‘totalitarianism’, ‘authoritarianism’, ‘repression’, ‘state terror’ and ‘genocide’. There is also much work in political science on democracy that is relevant to understanding the current state of human rights. For some time the desire of political scientists to be ‘scientific’ led them to neglect a concept that appeared to be at worst moralistic, and at best legalistic. Much recent work has rectified this neglect.

      The Western tradition of political theory has produced many formidable critics of such rights (see chapter two). This presents a strong challenge to the political science of human rights, especially since the classical critics are echoed by contemporary theorists. Underlying any social science of human rights, therefore, are a number of controversial philosophical assumptions. This does not, however, distinguish the social science of human rights from other branches of social science, such as the politics of democracy or the sociology of inequality. Nevertheless, it requires the social scientist of human rights to be aware of these philosophical controversies.

      There have recently been increased contributions to human-rights studies by sociologists and anthropologists. The impact of the global economy on the protection of human rights has also increasingly become a subject of study. This has been accompanied by an interest in ‘the human-rights movement’ as a transnational social movement. The social science of human rights has therefore picked up momentum.

Beyond human-rights law

International law was traditionally concerned with regulating the relations among states with the primary aim of maintaining international peace. The leading concept of this project was that of state sovereignty, which forbade states from interfering with each other’s internal affairs. The UN introduced the concept of human rights into international law without altering the concept of sovereignty. This legal framework is, however, subject to intense political pressures, as states and other actors seek to realize their interests and their principles in the international arena. The implementation of human rights by the UN is, therefore, highly politicized, and this leads to selective attention to human-rights problems, political bargaining, and limited implementation of human-rights standards. The UN is not a utopian realm above politics, and the political character of human-rights implementation is unavoidable. The politics of human rights is not, however, always harmful to human rights, for governments may raise genuine human-rights issues from self-interested political motives, and, when political motives lead to a narrow and selective concern for human rights, appeals are sometimes made to human-rights principles that can be applied more widely.

      The implementation of the UN’s human-rights principles was delayed for many years by the Cold War between the democratic, capitalist West and the authoritarian, Communist East, and by disagreements between the West and the new, postcolonial states. The UN proclaimed human rights but did little to implement them. The cost of proclaiming human rights is low, and many governments thought that they had much to lose by respecting the human rights of their sometimes highly discontented citizens. What is at first sight surprising is the development, albeit slow, of international human-rights law, and of a movement of NGOs to campaign for its implementation. In this situation, the UN stood in an ambiguous position. It was, on the one hand, the author and guardian of international human-rights standards while, on the other hand, it was an association of governments that were often serious human-rights violators. The UN has, therefore, been the central institution where international human-rights law and politics meet, and often clash, and where the gap between human-rights ideals and realities is especially apparent.

The political character of human rights has philosophical implications. The lawyers who have played a leading role in human-rights studies have sometimes relied, explicitly or implicitly, on the philosophy of legal positivism, which says that human rights are what human-rights law says they are. Human rights are, however, made and interpreted by a political process. The provisions of the UDHR were the subject of intense debates, and the final text was produced by a long series of votes. It is politically important that human rights have been codified in international and national law. It would be a mistake, however, to believe that the legalization of human rights takes the concept out of politics.

      The legal-positivist approach to human rights not only misrepresents their character, but also has dangerous implications. The point of human rights has historically been to criticize legal authorities and laws that violate human rights. Legal positivists sometimes say that the only rights are those that are legally enforceable. It may be desirable that human rights should be legally enforceable, but it is not necessary that they should be so. The concept of human rights implies that they are often not. If human rights were legally enforceable, СКАЧАТЬ