This post was co-authored by Katerina Linos, Professor of Law at Berkeley Law School.
Human rights advocates place great faith in international treaties and the courts designed to enforce them, but the right wing of the political spectrum tends to be less enthusiastic about these institutions. The human rights community assumes that treaties and courts create a one-way street leading inexorably toward greater human rights protections. We disagree and events surrounding recent decisions by Europe's Court of Human Rights support our view.
On Tuesday, July 1, this European Court ruled that European human rights law allows France to ban the burqa, rejecting the argument that restrictions on Islamic veils threaten Muslim women's freedom of religion and expression. What happened next suggests that human rights agreements do not work exclusively to enhance human rights.
Anti-immigrant sentiment in Europe is at an all-time high and leaders of far right parties wasted no time in using the ruling to call for copycat laws banning Islamic head-coverings. In Norway, Progress Party representative Mazyar Keshvari said: "The court in Strasbourg has now confirmed what we have constantly said: that a ban is compatible with human rights." Austria's Freedom Party plans to introduce a bill to ban burqas next week. In preparation, they just launched a poster campaign "against the Islamization of Europe" that portrays a blonde woman with the headline "too beautiful for a veil." In Denmark, the anti-immigrant Danish People's Party is also calling for a ban.
Human rights courts and the far right make strange bedfellows -- or do they? In "Human Rights Backsliding", an article just published in the California Law Review, we argue that international norms that can help improve human rights in poorly performing states can also lead high-performing states to weaken their domestic protections. After all, both progressive and conservative leaders can point to international standards in support of the claim that their proposals are mainstream rather than radical. A ban on certain kinds of clothing seems extreme, as do its proponents. But once the European Court of Human Rights says it is permitted, it suddenly seems more reasonable.
We have seen this pattern of backsliding before. When the European Court ruled that countries were not required to legalize same-sex marriages, gay rights opponents throughout Europe and even in the U.S. trumpeted the decision to support their views.
If we are right that international human rights norms can limit protections in high performing states, what can be done about it? Rewriting international agreements and Court decisions so that it is clear that they are minimum standards and that countries can offer much more generous protections, could help a little. But the Court decisions discussed above, and many other human rights agreements and court decisions, are already written in exactly this way. When the media or advocacy groups talk, however, they tend to ignore such details and the international agreement or court decision can come across as a statement about what is the "best" policy. A different solution would be to set very high standards. These would minimize backsliding, but would also require unrealistic improvements in states with the worst human rights records, where we most want to see improvement.
Moving away from the notion of universal human rights, and towards regional standards or perhaps standards that increase as economic development progresses, would also help (though it might not do much for the European cases mentioned above). Abandoning the notion of universality, however, would be a radical move away from the very thing that has made the concept of human rights powerful for the last 70 years: the notion that all humans are endowed with fundamental rights by virtue of being human.
We see no perfect solution to the problem of human rights backsliding. This is not good news, but it is surely better to recognize the risk than to ignore it. Turning a blind eye to the potential for backsliding and assuming that international agreements and courts can only lead to improved human rights is surely more dangerous than acknowledging the fact that reality is more complex.