For centuries, moral philosophers have regarded ethics and justice in the international plane as part of their domain. The move from the personal to the societal or national to the global seems effortless. In recent years, philosophers in ethics have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits better treatment of an individual’s co-nationals; while those in politics have revisited issues of international justice through, for instance, works on human rights and just war theory. These two bodies of work both address what constitutes a just world and what role the individual should play in furthering it. They correspond in many ways to the interactional versus institutional conceptions of morality and justice identified by Thomas Pogge

Ratner, Steven R.

English

University of Michigan School of Law

University of Michigan Law School University of Michigan Law School Scholarship Repository Reviews Faculty Scholarship 2005 Review of Human Rights: Between Idealism and Realism Steven R. Ratner University of Michigan Law School, sratner@umich.edu Available at: https://repository.law.umich.edu/reviews/200 Follow this and additional works at: https://repository.law.umich.edu/reviews  Part of the Human Rights Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation Ratner, Steven R. Review of Human Rights: Between Idealism and Realism, Ethics: An International Journal of Social, Political and Legal Philosophy 115, no. 3 (2005): 633-638. DOI: https://doi.org/10.1086/428471 This Review is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Reviews by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. 000BOOK REVIEWSTomuschat, Christian. Human Rights: Between Idealism and Realism.Oxford: Oxford University Press, 2003. Pp. 333. $72.00 (cloth).For centuries, moral philosophers have regarded ethics and justice in the in-ternational plane as part of their domain. The move from the personal to thesocietal or national to the global seems effortless. In recent years, philosophersin ethics have devoted considerable attention to the ethical significance of na-tionality and patriotism, asking whether an impartial morality permits bettertreatment of an individual’s co-nationals; while those in politics have revisitedissues of international justice through, for instance, works on human rights andjust war theory. These two bodies of work both address what constitutes a justworld and what role the individual should play in furthering it. They correspondin many ways to the interactional versus institutional conceptions of moralityand justice identified by Thomas Pogge.Yet over the years, remarkably few in international ethics have taken accountof the actual structure of the international order and, in particular, the normsthat have developed over centuries into what we now call international law.International lawyers analyze and seek the construction of an international orderwith a normative component, and the norms and processes they study andappraise cannot be set aside in asking about personal duties and justice. Theyand their field represent a sort of middle ground between the description ofthe world emanating from much of political science and the ideal theorizingof a just world offered by philosophers. Attention to international law is key notonly to making international ethics stronger within philosophy but, equally im-portant, to making it convincing to those concerned with operationalizing ethicaltheory—political scientists, legal academics, governmental and nongovernmen-tal elites, and the educated public. Of equal concern, when philosophers purportto take account of international law, their vision can be limited, misconceived,or anachronistic. To mention just one prominent example, John Rawls in TheLaw of Peoples grounds much of his work on an unargued summary of inter-national law based on a selective reading of a forty-year-old treatise ( J. L. Brierly,The Law of Nations: An Introduction to the Law of Peace, 6th ed. [Oxford: ClarendonPress, 1963]).Fortunately for those philosophers interested in understanding interna-tional law in the critically important area of human rights, Christian Tomuschat’snew monograph offers an insightful guide to both the substance of that law andthe complex processes for its implementation. Tomuschat, professor of consti-tutional and international law at Humboldt University, is well positioned to writethis tome. His experience includes not only decades of scholarship but alsomembership on two key UN international law bodies—the International LawCommission, which studies and helps codify law in numerous subject areas, andthe Human Rights Committee, which monitors compliance with the 1966 In-000 Ethics April 2005ternational Covenant on Civil and Political Rights—as well as chairmanship ofGuatemala’s truth commission in the 1990s. In one volume, Tomuschat is ableto paint a picture of international law that can aid philosophers seeking tocritique or improve the system built thus far.Tomuschat’s book is organized into fourteen chapters. The first four addressthe substance of human rights law, including its history; the categorization ofrights into “generations” by governments, international organizations, and schol-ars alike; and the ongoing global debates about whether human rights areuniversal or culturally relative. Eight of the next nine chapters address theimplementation of human rights through domestic and international mecha-nisms. These include the transformation of a state’s obligations into domesticlaw; the work of political organs of international organizations, including theUnited Nations and the European Union; the procedures of panels of expertscreated under treaties to examine state behavior; international courts, notablythose in Europe and Latin America; interstate enforcement through diplomacy,economic sanctions, and military force; criminal prosecution of human rightsviolators domestically and internationally; and civil suits to obtain reparations.Misplaced among these chapters is a nice chapter on international humanitarianlaw—the law of war—an area of law that has developed fairly independently ofhuman rights law until recently but which is meant, among its various goals, tooffer minimal protections to civilians during armed conflict.Tomuschat’s writing is clear and to the point, and, although the book isprobably targeted at a legal audience, it will not prove too technical for non-lawyers. The book combines both description of the law and mechanisms andthe author’s appraisal, though at many times I wished he had elaborated uponhis reasoning when offering his opinions. The book is also quite comprehensiveand now stands as the best English-language legal treatise on the subject. Likemany scholars, he focuses a bit too much on developments in Europe, thoughpart of that is due to the sophistication of the enforcement mechanisms andcase law in Europe—principally the European Court of Human Rights—com-pared to other regions.Tomuschat’s conception of human rights, while adequate for lawyers, maynot satisfy moral philosophers. He begins the book by asserting that humanrights for purposes of international law are distinct from rights that might bedeveloped by a philosopher, in that the former are part of a legal system, whichincludes both secondary rules (rules of recognition) and an enforcement system(1–2). A few pages later, however, he says that the individual enjoys “true rights”not merely when a government has a duty to act according to a certain rule,but only when the rights can “be invoked by their holders before any bodiesvested with decision-making authority” (4). Many philosophers will questionwhether an individually initiated remedy is necessary for the existence of a right.This view is certainly different from both the Hohfeldian conceptions as well asthe more minimal jurisprudential meaning developed by Joseph Raz in TheMorality of Freedom (Oxford: Clarendon Press, 1986). (Indeed, many lawyers willdisagree with his corresponding emphasis on individual petitioning proceduresat the international level, which Tomuschat insists are the sine qua non forindividuals to be “subjects of international law” [160]. That way of understandingso-called international legal personality, still dear to European scholars, has beenBook Reviews 000shown to be anachronistic, e.g., in Steven Ratner, “Corporations and HumanRights: A Theory of Legal Responsibility,” Yale Law Journal 110 [2001]: 443–545,475–77.) Then, Tomuschat suggests that the enforcement process is central tohuman rights as law, noting that his real focus is upon “the mechanisms designedto translate human rights as legal propositions into a living reality” (5). Yet, asthe rest of the book makes clear, the enforcement process is larger than indi-vidual remedies; and, moreover, a significant portion of the book is devoted—as it should be—to the substantive norms rather than enforcement. To his credit,Tomuschat explicitly discusses the concept of different duty holders, althoughI believe he misstates extant law in saying that “little if anything has materialized”regarding duties on corporations (91).In the chapters on generations of rights and the universality of humanrights law, he brings to light all the major debates in a nonpolemical fashion.He finds civil and political rights both more coherent and more important thaneconomic, social, and cultural rights. He discusses several reasons for this, thoughphilosophers will probably wish that the relationship among them were clearer.One reason seems to be that the former place more precise obligations on statesthan do the latter (39); another is that most of the former but few of the latterare “so essential for a human life in dignity” as to be “true individual rights”(41). For a third reason, he states, “The bulk of the obligations incumbent upona state under the heading of civil and political rights can be discharged just byadopting an attitude of passivity” (47). Yet the negative right/positive right dis-tinction is, as he himself discusses, too facile: civil and political rights cannot beachieved by passivity if the police force consists of people with a proclivity totorture suspects; only positive governmental action in the form of police trainingwill work. Others have offered more systematic treatment of these importantdistinctions, for example, in Henry Steiner and Philip Alston’s International Hu-man Rights in Context: Law, Politics, Morals, 2nd ed. [Oxford: Oxford UniversityPress, 2001], 242–75). Still later the author offers a more practical (and in myview persuasive) reason for his preference: “A human rights concept confinedto constraints limiting governmental action has much better chances of universalrecognition than a more comprehensive concept which considers human rightsas public order elements for state and society alike” (82).Similarly, Tomuschat seems to follow the European tradition of positivism,as he properly notes the dangers in eliding the philosophical ought with thelegal ought (2); indeed, he is overall very cautious in recognizing the existenceof new norms of human rights. Nonetheless, in justifying the 1999 NATO actionin Kosovo, which most positivist lawyers considered illegal under well-acceptednorms on the use of force, he admits that under exceptional circumstances, lawmust resort to morality and allow recourse to “extraordinary remedies” (228).Readers will probably have preferred an explanation of when such conditionsarise (need it be genocide?) or which remedies then become permissible.Tomuschat is in his element when he appraises the domestic, regional, andglobal mechanisms for the protection of human rights. On domestic imple-mentation, he astutely notes that governmental bureaucracies, including judges,are often an impediment to making treaties effective (104), and he makes noillusions that a state’s ratification of a treaty is a sufficient step for protectingrights. Yet he wisely does not put all the burden or blame on governments,000 Ethics April 2005noting that bureaucracies cannot just impose norms on a population throughtreaties (61) if societal values are not in tune with the treaties, concluding that“the intellectual frame of society conditions its practices in the field of humanrights” (320).Included in the chapter on domestic implementation is a very cogent dis-cussion of the territorial reach of human rights treaties, an issue that should becentral to the debates in ethics about impartiality and special duties owed tofellow nationals. Tomuschat points out that the duties of a state in the area ofhuman rights extend to all its residents, to others under its effective jurisdiction(e.g., residents of an occupied territory), and even to prisoners who are capturedby a state. This extension suggests that international law does not countenancethe idea that a state has special duties toward its citizens alone, but rather thatit must extend human rights to all those over whom a state exercises control.However, it does not suggest that states must protect the human rights of ev-eryone equally, including those beyond their jurisdiction and control.Tomuschat is generally balanced and frank in his assessment of the UnitedNations’ human rights compliance mechanisms, on one of which he served. Hewisely points out the double standards of the political bodies, namely, the Gen-eral Assembly and the Human Rights Commission, though he notes some pro-gress in recent years as they have moved to appraising and criticizing a varietyof states and not ridiculously singling out Israel. Tomuschat credits the shift tothe work of the expert-composed Human Rights Committee in reviewing theconduct of many states, as the political organs became embarrassed by theirsilence in the face of numerous human rights problems. The Human RightsCommittee’s recommendations to states following the submission of their man-datory (but often delayed) reports can, he notes, form the basis for pressurepoints on the government by both domestic and international groups. As forthe Committee’s review of individual petitions, he highlights the tendency ofstates to ignore the Committee’s views and, with great understatement, opinesthat the process “leaves ample room for improvement” (184).Nonetheless, the book is too often hesitant to examine the many politicalfactors that make human rights enforcement mechanisms (in the United Nationsand elsewhere) work or fail. For instance, most states ignore the conclusions ofthe Human Rights Committee because the net costs of ignoring them are muchlower than the costs of following them. The willingness over the last fifteen yearsof the General Assembly’s members to criticize more states for their humanrights practices in fact stems principally from the end of Cold War blockageswithin the Assembly, not from regard for the model set up by the Human RightsCommittee. Thus, a little more political context would have helped the readerunderstand both the promises and pitfalls of these mechanisms. How did theInternational Covenants come to emerge from the United Nations? Why didthe Europeans agree on a judicial system of enforcement through the EuropeanConvention and how did the Court emerge as such a powerful actor? Why didthe Latin American dictatorships even agree to a protection scheme on paperafter World War II, and what has caused its recent, slow acceptance by govern-ments? Why did the Security Council get into the business of protecting humanrights? While one would not expect a rigorous political science model, readerswould benefit from a more real-world understanding of how these institutionsBook Reviews 000evolved and who—which governments, leaders, nongovernmental organizations,and others—are to blame for their shortcomings.What the philosopher chooses to do with Tomuschat’s analysis of the lawand procedures (but not so much the politics) of human rights is the next stagein the needed dialogue between international law and ethics. But at least twoconclusions are warranted at this stage. First, though human rights law has muchin common with a cosmopolitan vision of ethics insofar as both recognize thecentrality of human dignity, the law that has emerged diverges sharply from theone strong cosmopolitans prefer. It does not countenance a cosmopolitan viewof the world insofar as that term means that the individual is the sole unit ofconcern and all individuals, regardless of location or nationality, are treatedequally. Attempts to ignore the claims of other entities, in particular states, leavea gap between the two disciplines: international lawyers will find them marginalto their enterprise, and ethicists will be shining their light of reason on onlyone set of international actors. Some moral philosophers will simply find thisbeside the point; but those cosmopolitans willing to engage in nonideal theorywill need to take account of this reality. Indeed, as Tomuschat’s work makesclear, the recognition by international law of the claims of the state does notmean that international law is immoral or only about protecting state interests,as some have accused it (e.g., Brian Barry in “Statism and Nationalism: A Cos-mopolitan Critique,” in NOMOS XLI: Global Justice, ed. Ian Shapiro and LeaBrilmayer [New York: New York University Press, 1999], 12–66).Thus, for instance, even so committed an advocate of human rights pro-tection as Tomuschat has significant misgivings about universal criminal juris-diction. Under this principle of international law, every state in the world isentitled to prosecute certain grave crimes against human dignity regardless ofthe state’s connection to the events, such as their location, the nationality ofthe offender, or the nationality of the victim, as long as the state has custody ofthe accused. Tomuschat is concerned not only with the possibly arbitrary use ofuniversal jurisdiction to the detriment of a defendant’s human rights (with whichcosmopolitans could sympathize) but equally with the interstate tensions thatarise from its use. Thus, he favors immunity for heads of state and foreignministers from the jurisdiction of foreign courts even when accused of inter-national crimes in order not to “do more harm than good to the internationallegal order” (316). (For more on this problem, see Steven Ratner, “Belgium’sWar Crimes Statute: A Post-Mortem,” American Journal of International Law 97[2003]: 888–97.)Second, Tomuschat’s work should cause those who prefer to divide theworld into liberal and illiberal states to have second thoughts. Human rightslaw is designed to be a universal law for all peoples, and while its implementationleaves much to be desired, those shortcomings do not justify creating a specialset of moral obligations for the liberal states and another for illiberal societies.As Allen Buchanan, Eric Cavallero, and others have discussed in this journaland elsewhere, Rawls’s attempt to do so in The Law of Peoples fails to take intoaccount the many virtues of a global system for the protection of human rightsand gives up on human dignity as a goal for certain types of states.Tomuschat’s book represents the best starting point for both lawyers and000 Ethics April 2005ethicists seeking a general appraisal of the international system for the protectionof human rights. It is a most welcome addition to the literature.Steven R. RatnerUniversity of Michigan

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