The Blackwell Companion to Sociology (24 page)

freedom from discrimination, as an overarching human rights principle, has

obvious implications for fields in sociology ranging from citizenship and

national identity to education, stratification and mobility, and health policy.

Specific human rights, like freedom of speech and association, are clearly rele-

vant to issues of political participation and labor. Gender, sexuality, children, and race are major themes among human rights scholars. The relationship

between the state and civil society is central to the international articulation and national implementation of human rights in all societies around the world,

and as such of interest to sociologists. Human rights considerations are also

relevant to the mediation of competing claims to economic and social justice,

identity, and communal autonomy, in global cross-cultural and comparative

terms. These concerns join those of sociologists over such issues as globalization and postcolonial power relations, social movements, development, accountability of transnational corporations for labor relations, and environmental con-

cerns.

To explore possibilities of collaboration and mutual influence between

sociologists and human rights scholars, I begin with an overview of the human

rights paradigm as the framework for the specification and implementation of

rights through national politics and international relations. Since many of the

main themes of human rights are commonly known in terms of constitutional or

civil rights (subject to the crucial difference indicated later), sociologists might want to consider whether their familiarity with the working of domestic

(national) civil rights could enable them to contribute to mediating what I call the paradox of international accountability for the domestic practice of

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sovereign states. Mediating that paradox also calls for some understanding of the debate over the universality and cultural/contextual relativity of human rights, discussed in the second section. In the third section of this chapter, I discuss the need for complementary legal and social science approaches to the implementation of human rights as a framework for justice; and provide a brief review of

some of the ways in which sociologists have addressed human rights issues.

The Human

Human Rights Paradigm

Human rights, in a generic sense, can be seen as a framework for an adequate

response to the profound social concerns of persons and their communities. This

primarily procedural sense of human rights is about creating and maintaining

``the space'' for individuals and groups to achieve justice, personal security and well-being, general political stability and economic development, and so forth.

At the same time, however, human rights norms do have a specific normative

content that reflects a certain understanding of what these individual and soci-

etal objectives mean, and how they should be realized in practice. In a substan-

tive sense, therefore, human rights have a clear ideological orientation to what it means to be human, and how social and political institutions should work in

order to achieve certain ends. However, there is a tension between these two

dimensions of human rights. To inspire and motivate people to take them

seriously, human rights need to have significant and relevant normative content

in each specific context.Yet this is likely to be resisted by privileged and powerful persons and groups in any society precisely because of the potential to change

existing power relations. Aspects of this tension and its implications will become clearer after a brief explanation of what human rights are commonly understood

to mean, and how they are supposed to work.

By the human rights paradigm I mean the idea that the protection of certain

individual and collective/group rights, as discussed below, is a matter of international concern, rather than the exclusive internal affair of states. Paradox-

ically, as explained below, the same states control the processes of determining these rights at the international level, and applying them within national jurisdictions. Moreover, what the so-called international community may do about

a state that willfully and persistently disregards its international obligations to protect those rights is also subject to a complex interaction of legal principles and practical considerations. For instance, the notion of ``humanitarian intervention'' to stop serious human rights violations within a country (as claimed by the NATO governments who intervened militarily in Kosovo in 1999 against the

government of Yugoslavia) involves balancing such factors as human concern

about the suffering of the victims, the risks of action or inaction for international peace and security, and the political and economic interests of the intervening

state(s), as well as the short-and long-term implications of violating the sovereignty of that country.

Much of the normative, as well as the procedural, dimension of human rights

is traditionally supposed to be provided for in national constitutions and laws

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for domestic application by the judicial and executive organs of the state, as a matter of national sovereignty. Earlier attempts by some states acting collectively to extend such regimes into the boundaries of another state included international efforts to end slavery and to protect minorities during the nineteenth and early twentieth centuries. But the real launch of the human rights paradigm in

the generally accepted sense came about around the middle of the twentieth

century. The horrific events of the Second World War prompted strong agree-

ment by the mid-1940s on the need to effectively check the serious failure of any state to protect the rights of all persons and groups within its territorial jurisdiction (Steiner and Alston, 1996, p. 59). That was the first time there has ever been such a broad consensus about the need to reconcile respect for the sovereignty of a state with the protection of certain human rights as rights due to every human being by virtue of his or her humanity, without distinction on such grounds as

race, sex, belief, language, or national origin.

But since the process of determining the nature and scope of these rights, and

approaches to their international protection, was confined to sovereign states

which were members of the United Nations (UN) in 1945, only four African

states and eight Asian states were included. The rest of Africa and Asia was

colonized at that time by the same European powers that were proclaiming the

universality of human rights at the UN. Moreover, some basic ambiguities in the

original concept continue to frustrate the prospects of its practical application.

For example, these rights are proclaimed in general terms as belonging to all

human beings, while their realization is strongly associated with citizenship of a specific country. Although some general principles of international law still

apply to how a state may treat non-citizens who happen to be within its territory, the distinction between citizen and non-citizen is sometimes difficult to justify from a human rights point of view (Turner, 1993b, p. 495; 1997). To avoid these

complex issues in this brief overview, I refer to persons under the jurisdiction of a state, instead of identifying them as its citizens.

The consensus of the mid-1940s was strongly reflected in the Charter of the

UN of 1945, which is the most authoritative document of the present interna-

tional order. According to Article 1 of the Charter, ``The Purposes of the United Nations are . . . (3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in

promoting and encouraging respect for human rights and for fundamental free-

doms for all without distinction as to race, sex, language, or religion.'' While emphasizing this basic obligation in other Articles, the UN Charter left the task of definition and implementation of ``human rights and fundamental freedoms''

to subsequent developments.

That process began with the drafting and adoption of the Universal Declara-

tion of Human Rights of 1948. But the Declaration is not binding as such

because, according to the UN Charter, resolutions of the General Assembly are

merely recommendations to member states of the organization. The drafting and

adoption of detailed treaties, which are binding under international law,

followed, to provide definitions of rights and their implementation. Moreover,

some human rights norms can also be found in certain principles of what is

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known as customary international law, like the prohibition of genocide, war

crimes, and crimes against humanity. These norms are binding on all states,

regardless of their ratification of treaties on those matters. Some human rights scholars argue that certain aspects of the Universal Declaration have become

binding as customary international law. For example, the prohibition of torture

is generally accepted as binding on all states as a principle of customary

international law, regardless of their ratification of the specific treaties on the subject.

The treaties setting the international ``legal'' standards of human rights range in scope from earlier Conventions on labor rights (1930), genocide (1948), and

slavery (1956), to the broad 1966 International Covenants, one on economic,

social and cultural rights, and the other on civil and political rights. There is also a growing number of specialized treaties, like the Conventions for the Elimination of All Forms of Discrimination, on grounds of race (1965) and gender

(1979), and the Convention on the Rights of the Child of 1989. Similar stand-

ards appear in the regional documents of the European, Inter-American, and

African systems (Steiner and Alston, 1996, p. 563). This legal regime also

includes principles of humanitarian law regulating the conduct of armed forces

in conflict situations, like the four Geneva Conventions of 1949, and the 1951

Refugees Convention. Human rights standards have also been elaborated

through several major international conferences. During the 1990s, for instance, human rights principles and policies were elaborated in such documents as the

Vienna Declaration and Programme of Action (1994) and the Beijing Platform

for Action of the Fourth World Conference on Women (1995). Human rights are

integral to the mandate of specialized intergovernmental agencies like the International Labor Organization (ILO), the World Health Organization (WHO),

and the United Nation Development Programme (UNDP).

As the increasingly wide range of local, regional, and global actors and

processes envisioned by this complex web of documents and institutions clearly

shows, the development of an international legal framework cannot mean that

the implementation of human rights be left to purely legal approaches. The basic idea of the human rights paradigm is now firmly established in international

relations, as well as in the national politics of the vast majority of countries around the world, subject to differing assessment of its efficacy or consistency of its application. Nevertheless, the basic paradox remains: how to achieve effective international supervision of domestic human rights protection without

violating national sovereignty as the expression of the right to self-determina-

tion, which is itself a collective human right under the first Article of the 1966

Covenants.

From this perspective, I suggest, social science approaches would be extremely

important for understanding the processes of legal articulation and implementa-

tion of these rights as the proper and legitimate exercise of the right to self-

determination, rather than its negation. Sociological analyses are needed, for

example, for understanding the processes of social construction of rights, whose interests are served by those processes, and the role of civil society and social movements in generating the political will to adopt and implement international

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treaties protecting these rights. Such insights are essential for mediating the

paradox of international protection of human rights through respect for sover-

eignty, instead of its violation, as explained below.

It is true that, by ratifying treaties and subscribing to international human

rights policy statements, states are indicating voluntary acceptance of human

rights obligations as limitations on their national sovereignty. But that notion itself can be seen as entrenching, rather than diminishing, the underlying paradox, because it is the state that decides when, how, and to what extent to limit its own sovereignty. First, the structure and content of any human rights treaty are negotiated and agreed among the delegates of states, before the treaty is opened for ratification. Second, and regardless of its publicly declared position, no state is legally bound until it formally ratifies the treaty according to its own internal constitutional and political process. Moreover, subject to the requirements of the international law of treaties, a state has the right not only to enter ``reservations''

limiting the scope of its obligations under a treaty, but also to repudiate a treaty that it has previously ratified. Third, the state is also intended to play a crucial role in the interpretation and implementation within its territory of the human

rights treaties it has ratified. Where national legislation is required to incorporate international treaties into national law, as in the United States and United Kingdom, the domestic normative content of a treaty is effectively determined by the way it is expressed in legislative language, and interpreted through the