Human rights treaties have become an instinctive marker for a country’s ability to uphold human rights, and be considered a “developed” country to fit into the fraternity of civilized states. Despite its non-binding nature and lack of enforcement from outside agents, countries have consistently signed on to human rights treaties. Whether this phenomenon of a steady rise in human rights treaty ratification supports development and promotes human rights within these countries, is a matter of various inquiries into the utility of not only human rights treaties but also on the existing norms within international structure. If we take a closer look at the human rights conventions, we will see that everyone has signed on to almost every human rights treaty like a new divorcee signing up to all available online dating sites. But that does not mean that human rights abuses are on a downward spiral. As a matter of fact they are on the rise in many nations.
The State Department annually publishes a list of countries that violate human rights treaties. Many NGOs and think-tanks also publish lists of offenders. These lists vary in terms of what they assess (from torture to the lack of due process), but they have maintained a general consistency in terms of who occupies them (Iran, Israel, Libya, Sudan are always trying to outdo each other in treating their own people poorly and pretending it was either an accident or they are fighting ‘terrorists’). While there are some serious discussions concerning whether or not any governmental organisation is fit to make this list without political considerations and collusion (with its allies), it is a process that gives us a better understanding of where things are in terms of human rights. The general assumption is that the countries that sign on to human rights treaties should be scrutinized more than the countries that refuse to do so, because agreement is viewed as acceptance of the conventions and to not abide by them is like reneging on a promise. And no one likes a promise-breaker. All these list making and human-rights posturing fail to address the more important issue of the effectiveness of human rights treaties. Do they really matter? More importantly, can you predict how a country that is in the process of joining the fraternity of democratic nations will act when it comes to human rights through these treaties?
A major finding about the utility of human rights regimes comes from Oona Hathaway (of Yale Law School), who suggests through empirical analysis that human rights treaty ratification plays a dual role. According to Hathaway, HR treaty ratification plays an “expressive role” to notify the international community that the treaty participants are involved in a process of providing rights for their citizens along with its obvious role of treaty obligations. But she points out that, human rights treaty ratification can be used to provide cover for worse human rights practices within the treaty participants’ sovereign border. Thus, such treaty ratifications cannot to be valued as the primary indicator of a country’s willingness to promote human rights. Neo-Realists, like Eric Posner and Goldsmith move further away from this finding and approach this question from a cost-benefit (rational choice theory) perspective and assert that without the explicit interest of powerful countries both regionally and globally, there is little cost to treaty participants if they decide to sign the treaty purely for the sake of symbolism. This view stems from the fact that within the current international system, human rights regimes are exceptionally weak compared to financial regimes. So signing a human rights treaty is not necessarily a good or a bad thing, but a matter of cost benefit analysis for the states. If a government views a treaty ratification to be necessary to pretend that things are improving within the country, they just might sign on to it and/or express willingness to do so. And that assessment brings us to the current situation in Burma.
The Rohingya refugees who are streaming across Bangladeshi border have rights but no one is entirely sure what those rights are. The only thing that is clear from all this is that Burma has taken active steps to displace these people. All these abuses are coming at the backend of an ongoing market liberalization that has been touted by the government while displaying foreign dignitaries and foreign ministers as beauty queens at a pageant. As a direct result of market liberalization currently there is less pressure on Burma to deal with the rampant abuses of this minority group. And even people who would be otherwise be appalled by the abuses, have taken a sort of a casual approach to this issue because they have the misplaced hope that Burma is being ‘liberalized’ so these relatively smaller wrongs will be addressed in the long run once they become part of the human rights regime. The fact is far from that hopefulness. Historical data suggests that an intolerant country’s willingness to liberalize is usually only for the liberalization of its markets, and nothing more. The issue of human rights becomes a secondary issue at best and, at worst, a tool to further abuse people while pretending to be liberalizing. The refusal of the Burmese government to reach some sort of compromise on the Rohingya issue is a good example of how the Burmese government is using its newly found status as a developing ‘responsible’ nation to circumvent this issue while advancing an agenda that is not too far away from apartheid. But isn’t that how every nation-state acts? The realists would say it is the only way to act.
Constructivist theorists like Schmitz and Sikkink counter these assumptions of neo-realists, who believe in a materialist motive of all states, by stating that states do gain from signing human rights treaties and in the long run are better off with them. They introduce a mechanism of how human rights treaty ratification plays out within the domestic borders. According to Risse, Ropp, and Sikkink, non-governmental, non-state actors play an influential role in making a country meet its international obligations. First these non-governmental actors (i.e. NGOs, religious institutions) gather information about violations of human rights in specific countries. Then, in turn, the state in question denies any presence of universal norm in response to the evidence gathered by the transnational actors. Eventually, the state makes concessions to deflect criticism; certain concessions lead a state to ratify a treaty. Such behaviour brings the state closer to the international expectation of treaty obligation. So this internal mechanism actually influences state behaviour. That is good news, if you fail to read between the lines. Because of the military-industrial complex of Burma, there are no real internal actors outside the government or the opposition. The opposition, led by Suu-kyi and her constant halo, has been less than forthright on the matter. The projection of how countries become more liberal and inclusive is based on the assumption that internal mechanisms like NGOs and religious institutions provide protection for the rights. It appears Burma has none that are willing to wager in on a just cause. In all practicality, the realist assumption of treaty commitments being only tools to further real politick is holding true.
Scholarly findings do not invalidate the notion of human rights treaty ratification but focus on the pitfalls of the implementation process of these treaties. They also suggest that it is possible to use these liberal moves to counter actual change and hide abuses. This brings us to the very important issue of implementing these treaties and having a legal mechanism to punish the offenders. The idea of having a punitive mechanism in place to counter egregious violations of HR treaty violations is nothing new. The original Human Rights Commission discussed, and then abandoned, a proposal that the U.N. be authorized to use military force against states in cases of such failure of the state to uphold its obligation. So despite having various theories of the impact of human rights treaties, the primary view of contention comes down to the implementation of these HR treaties. By having a mechanism to counter these problems of lax obligation to human rights, we might be able to offset the symbolic nature of human rights treaties and make human rights regime a stronger proponent of human rights, not just casual feathers on a starving peacock of possibilities.
As for the current Burmese situation, we should be vigilant about not falling for the chorus of cheerleaders for a new Burma. Without an equitable remedy to the Rohingya situation, the new Burma is exactly like the old Burma.
Jyoti Omi Chowdhury is a War Theorist and a Visiting Researcher at Center for Sustainable Development.