by Rhodri C. Williams
Last weekend, Swedish international lawyer Krister Thelin published a provocatively commonsensical proposal in Dagens Nyheter, one of Sweden’s two big broadsheets. In his article, Thelin, who sits on the UN Human Rights Committee, recommended that the countries of the world be assigned grades allowing comparison of their human rights performance. He argues that overcoming UN hesitations in this area would place greater pressure on non-compliant states and provide benchmarks to guide the performance of governments genuinely interested in performing better. Mr. Thelin also suggested that such an approach would be of immediate assistance in encouraging progress toward democracy and respect for human rights in the course of the ongoing ‘Arab Spring’ in the Middle East and North Africa.
This argument is sound in principle. Human rights are meant to be universal and applicable in equal measure to all the states of the world. Moreover, the vast majority of states have ratified human rights conventions and virtually none deny the existence or applicability of human rights as a matter of official policy. From this perspective, the failure of states to uniformly apply human rights is not only morally repugnant but hypocritical, and a grading system as proposed by Mr. Thelin would further expose this hypocrisy. The establishment of such a system would probably be more complicated than Mr. Thelin lets on, given that it would add further fuel to a number of debates within the field of human rights as well as in regard to the related fields of humanitarian assistance, development cooperation and transitional justice. However, one of the striking aspects of Mr. Thelin’s proposal, as it now stands, is that it does not entirely acknowledge the existence and significance of these debates.
Before going further, I should mention that I have exposed Mr. Thelin’s text to the unlovely attentions of google-translate and made it available to English language readers in the ‘resources’ section of this blog. I have also rooted around a little in the internet and found some interesting antecedents to the proposal. On one hand, it does seem that the issue of grading in the Committee’s work has received some past outside attention, with Mr. Thelin in the spotlight. As reported in the slightly notorious Inner City Press, the issue came up last March as the Committee reviewed Uzbekistan’s (slightly notorious) human rights record:
… Inner City Press asked Committee members if Uzbekistan’s record was getting better or worse. “That’s not the way we address it,” replied Krister Thelin, a Swedish member of the Committee. “I will not engage at this time in any grading exercise. I hope you can respect that.” … Is Uzbekistan’s record better or worse than New Zealand, which was also being reported on? We don’t compare, was the answer, along with a coy pointing to the fact that Uzbekistan has been asked to report again in three years, while New Zealand has been given five years, the “top grade.”
However, the other motivation for Mr. Thelin to abandon his coyness appears to be a set of earlier commentaries in DN. The original article is a bit of false modesty by the current government, fresh from getting lots of ‘pats on the back’ for Sweden’s economic acumen during a time of crisis at last January’s Davos summit. In May, another Swedish international law heavyweight, Hans Corell, latched onto the theme of being an example through continuous reform in order to promote strengthening of the rule of law in Sweden. In doing so, Corell promotes a new ranking system for the rule of law (the World Justice Project), noting that he had suggested that the UN adopt such a system years previously but that “the thought was not well-received”.
One of the striking things about both Corell’s and Thelin’s articles is the extent to which they focus on civil and political rights, as opposed to their economic and social counterparts. In Corell’s case, this is less surprising, given that he is advocating rule of law, which tends to be heavily focused on traditional civil and political rights concerns. However, the breadth of his claims nevertheless efface social and economic issues in a manner that seems needless and, some might argue, groundless. For instance, Corell references the Arab Spring in arguing that “the conflicts in the world all have, at bottom, the same cause: the lack of democracy and rule of law.”
This formulation seems to me to beg the question – in the Middle East, was lack of democracy and the rule of law the sole cause of unrest, or was the issue instead that this absence left no non-violent means of addressing the underlying distributional injustices that left tens of thousands in poverty? After all, where I initially felt obliged to apologize for covering the Arab Spring on this blog, I quickly came to realize that economic grievances related to lack of equitable access to land and property played a central role. The point is not that one or the other type of claim is always most important but that it need not be phrased as an either/or question. The groundbreaking (albeit non-binding) Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly in 1948 was meant to banish both fear and want, and it was Cold War politics that split its contents into two separate conventions on civil/political and social/economic rights, respectively.
Mr. Thelin’s Human Rights Committee monitors half of this duo, the International Covenant on Civil and Political Rights (ICCPR), which he promotes as “the UN’s most important [human rights] convention” and the primary yardstick for his grading proposal. While the Human Rights Committee’s findings are to be bolstered with “the rest of the Monitoring Committees’ own reports” and various UN development indices, Mr. Thelin never explicitly mentions the ICCPR’s twin, separated at birth, in the form of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The economic and social human rights set out in this document have just as distinguished a pedigree as civil and political rights. Both began life side by side in the UDHR, both were adopted in 1966 and entered into force a decade later, and the economic and social rights convention has been ratified by only about seven states fewer than its civil and political rights counterpart. The UN has also set up a Committee on Economic, Social and Cultural Rights that plays a role largely analogous to the one that Mr. Thelin sits on.
During the Cold War, civil and political rights tended to be favored by Western capitalist democracies, while economic and social rights were emphasized by the Soviet bloc and many developing countries. This polarized view of human rights was formally laid to rest by the 1993 ‘Vienna Declaration‘, endorsed by 171 states, that declared both forms of human rights “universal, indivisible, and inter-related.” However, almost two decades after Vienna, the divide persists with many states viewing social and economic rights as a questionable attempt to impose standards on the discretion of states to chart their own course toward economic development. Likewise, the Economist continues to regularly argue that economic/social rights are a dangerous distraction from the “classic” civil and political rights that they tend to favor. While Thelin does not explicitly reject social and economic rights, he does condemn the use of economic discrepancies between states – and reference to the historical reasons for this phenomenon – as an excuse for failing to respect civil and political human rights:
The UN, whose main purpose under the Charter is to develop the area of human rights, has a touch panic anxiety when it comes to comparisons in this area. All states, whether they are mature democracies or semi- or complete dictatorships, are considered to be equivalent and should not be compared. This is the dominant approach. The echoes of the Cold War and the polarization between North and South makes the issue so charged; historical, cultural, social and economic explanations for variations between countries in development terms is considered more important than the differences themselves. And avoidance of stigma is the underlying message.
While underdevelopment cannot excuse human rights violations, this issue arguably underscores the need to focus on both categories of rights. In order to serve as a legitimate benchmark, the human rights standards that would form the basis for a universal grading system would themselves need to be accepted as fair and impartial. In particular, they would have to be capable of transcending the bitter political debates that Thelin references. And it is on this level that his ambitious proposal for a human rights grading system risks falling short.
Mr. Thelin has focused on accountability for state performance in one category of human rights – namely the civil and political human rights overseen by the Committee on which Mr. Thelin serves. As a result, this proposal fails to mention one half of the global corpus of human rights, and unnecessarily exposes a sound project to charges of political bias. If Mr. Thelin is opposed to the use of economic and social rights as a benchmark, putting forward principled arguments to this effect would serve to promote a healthy and necessary debate. However, ignoring this body of rights would only serve to reinforce rather than ameliorate the unhealthy climate of polarization within the UN that Thelin himself decries:
The notion is sometimes hinted at that the idea of universal human rights is actually a European invention that fits badly in some states internal socio-cultural system and thus is only an expression of persistent colonial oppression – though no one wants to say it openly. For the many human rights sins of states, there are always excuses.
One might wish that human rights could be entirely sealed off from the messy and morally compromised world of politics. However, if rights are to make a meaningful impact on the real world, they must be formulated in a way that recognizes the manifold injustices that prevent the achievement of liberal democracy and equitable development. As in the Arab Spring, the most obvious injustices frequently involve violations of civil and political rights through measures such as censorship, arbitrary imprisonment and the lack of free and fair elections. However, one of the reasons that political expression is so vital in such situations is that it provides the only peaceful means of addressing fundamental underlying injustices related to the distribution of resources. Indeed, let us recall that the spark that ignited the Arab Spring was economic, with street vendor Mohammed Bouazizi’s self-immolation coming in response to corrupt officials’ denial of his right to a livelihood.
It is here that social and economic rights can give meaningful guidance on the minimum distributional commitments that most of these states have already undertaken by ratifying the ICESCR. While addressing these injustices will require good political judgment in the future, downplaying their existence in the present will serve neither a UN human rights benchmarking system nor those it is meant to benefit.