American Journal of International Law
April, 2005
99 A.J.I.L. 527
BOOK REVIEW
Human Rights: Between Realism and Idealism. By Christian Tomuschat.
Rosa Brooks
In Human Rights: Between Realism and Idealism Christian Tomuschat fulfills his title's promise. His account of the place of human rights in domestic legal systems, and the international legal order is lucid and thorough, and it offers few concessions either to cynically inclined realists or to starry-eyed idealists. As a result, his book will be frustrating in equal measure to both groups. Realists of varying stripes will object to Tomuschat's lack of attention to issues of process and power, whereas idealists may lament his disciplined insistence on traditional rules of legal construction and his reluctance to embrace as fully justiciable many second-and third-generation rights. Nonetheless, Tomuschat, a professor at Berlin's Humboldt University, has written a book that will be of great use to readers of any jurisprudential bent. Human Rights offers an erudite and admirably well-organized overview of the network of formal legal rules and institutions that support human rights.
"Human rights is a concept easily used not only by lawyers but also by politicians and, more generally, the public at large" (p. 1), Tomuschat notes in his introduction. He plants his own flag at the outset, defining law as "the instrument by which a modern society regulates the processes of interaction among its members, the expectation being that its normative claims be translated into actual practice. Propositions confined to a mere existence on the books' would not qualify as legal rules" (p. 1). Here, a realist might immediately observe that much of what we think of as human rights law is both unenforced and virtually unenforceable. But as Tomuschat notes, "the road from Utopia . . . to legal positivism" (p. 3) consists of three steps, all worthy of study. The first step involves consensus on normatively compelling "rights" worthy of being embedded in a legal order; the second involves a juridical commitment to those rights through their codification in treaties and other instruments; and the third involves the development of effective enforcement mechanisms.
To a significant extent, the international community has completed the first two steps. There is widespread global agreement on the nature of fundamental human rights, and these rights are defined in treaties that have been widely ratified. The third step remains to be achieved, of course, and Tomuschat does not deny that human rights enforcement mechanisms are notoriously imperfect. But he makes a persuasive case for focusing, in his book, on "the mechanisms designed to translate human rights as legal propositions into a living reality" (p. 5), rather than on some broader conception of human rights. Tomuschat insists on the value of distinguishing between "the philosophical ought" and "the legal ought" (p. 2), and it is with the latter that his book is concerned.
In keeping with this agenda, Tomuschat begins his discussion with a chapter on the historical evolution of human rights as a legal concept. Readers interested in tracing the origins of modern conceptions of human rights back to their roots in Babylonian or Confucian or Biblical thought will find nothing to aid them here. Tomuschat unapologetically concentrates on European intellectual and legal history: he argues that human rights as a modern legal concept evolved out of enlightenment thinking. What we could today call human rights were gradually incorporated into many national constitutional texts, and in the nineteenth century an increasingly cosmopolitan elite mobilized against the slave trade and the excesses of war. Only in the twentieth century, however, did the devastation of two world wars spark the creation of human rights law as we understand it today: "It was the atrocities committed by the criminal Nazi dictatorship all over Europe which definitively paved the way for a new understanding of the relationships between the individual, the state, and the international community" (p. 22).
This story is not a new one, but Tomuschat tells it compellingly, clearly, and with restrained, but evident, passion. Tomuschat may eschew the label of idealist, but he is unabashedly committed to human rights as a normative enterprise. With the adoption of the United Nations' Universal Declaration on Human Rights in 1948, he writes, "For the first time in the history of mankind, a document had come into being which defined the rights of every human being, independently of his/her race, colour, sex, language or other condition. A new chapter of human history began on that day" (p. 23).
The chapter on the history of human rights is followed by a discussion of the different "generations" of human rights. Here, too, Tomuschat presents a tempered account. Tracing the development of various rights through the Universal Declaration, the two major UN Covenants, and other instruments, he acknowledges both the fundamental interconnectedness of civil, political, social, and economic rights, and the misleading aspects of speaking in terms of "generations" of rights. Nonetheless, he defends the priority that most states have given to "firstgeneration" or "negative" rights, arguing both that this priority is appropriate in light of the language of the applicable human rights instruments and that it is justifiable on pragmatic grounds, as "first generation" rights are more easily definable and therefore more readily provided by states. Tomuschat stands firmly in the traditionalist camp when it comes to "thirdgeneration" rights, arguing that they are "surrounded by . . . uncertainties regarding their holders, the duty-bearers, and their substance" (p. 50); to him, "rights" such as the right to peace or development are still, today, philosophical oughts, very far from being legal oughts. He notes briefly the increase in interest in "rights" to democracy, good governance, and human security, but argues that although all these are important and there may be political value in using the terms rhetorically, all these "rights" are essentially global ways to describe the clusters of rights already guaranteed in the core human rights documents.
Succeeding chapters focus on the universality of human rights; the national implementation of human rights; international and transnational organizations; the role of expert bodies (including state reporting, fact-finding, and complaint procedures); international tribunals; state enforcement of human rights and the role of nongovernmental organizations; humanitarian law; international criminal law; and civil suits against human rights violators. Readers will find each chapter both readable and as comprehensive as can be reasonably expected in a book that is under 350 pages. Human Rights is a treatise, not a casebook; major cases, incidents, and documents are mentioned in passing, but Tomuschat proceeds thematically rather than through case studies.
Chapters 6, 7, and 8 are especially thorough, benefiting from Tomuschat's years of experience working with UN bodies: among other things, he served for a decade on the Human Rights Committee, and for another decade on the International Law Commission. Tomuschat's extensive personal experience lends authority and weight to his arguments throughout his book. Unlike many scholars who write about human rights law without ever having seen it in action, Tomuschat's combines a scholar's objectivity with the practical wisdom that comes from long experience with organizations as varied as the International Commission of Jurists (he was a member from 1986 to 1996 and has since been an honorary member) and the African Development Bank (he served as a judge on the bank's administrative tribunal from 1999 to 2003).
Human Rights is not a book for beginners. Tomuschat takes for granted that readers will come to his book with a solid background in international law, and he does no spoon-feeding. As a result, while this book will be of great value to practitioners already knowledgeable about international law and to professors teaching human rights law to upper-level students, it is probably not appropriate for undergraduates or law students with no prior international law background. But it is a welcome addition to the books currently available, and one could readily organize a semester-long course around this book, supplementing it as desired with documents, cases, and background reading.
Tomuschat's book is not entirely free of shortcomings. The writing tends to be dry and restrained, and at times the passive voice sucks some of the life from the material. This complaint is a minor one, though. Readers are more likely to be dismayed by two issues: first, the perspectives that Tomuschat leaves out, and second, his lack of attention to issues of process, power, and political change.
Tomuschat writes from a distinctly European perspective. Throughout the book, far more pages are devoted to a discussion of European human rights mechanisms than to other regional systems such as the Inter-American human rights protection system and the nascent African system. Insofar as the European system is better developed, with stronger enforcement mechanisms, this emphasis is fair enough -- and consistent with Tomuschat's stated goal of addressing the mechanisms by which human rights become legal concepts, with all that entails. Nonetheless, readers looking for a more global overview or a less traditional approach may be disappointed. Just as his chapter on the history of human rights ignores non-Western sources, his chapter on the universality of human rights is rather dismissive of arguments that the international legal order, in which human rights is embedded, is a Western construct. Tomuschat clearly has little patience with cultural relativism, and although this reviewer shares his views, students (in particular) may find frustrating the minimal attention given to this issue.
Tomuschat's European perspective is also apparent in the short shrift he gives to American exceptionalism, which he deplores. On the one hand, this perspective may make his book a valuable eye-opener for American students, who are apt to assume that traditional U.S. government interpretations of international law are naturally correct. Tomuschat's rigorous focus on human rights as "legal oughts" is valuable in this respect, as it enables students to see that regardless of the political dynamics, there are more and less plausible -- and globally more and less wellaccepted -- legal arguments that can be made about various human rights and state duties. While the United States' superpower status may enable it to avoid accountability for its often implausible legal arguments, it is useful for students to understand the degree to which the United States is increasingly an outlier on many matters connected to human rights.
On the other hand, Tomuschat's refusal to grapple seriously with arguments made by the United States and other outliers is at times frustrating. He decries the U.S. policy that permits "targeted killings" of suspected terrorists, arguing that, in effect, the United States "arrogates to itself the right to put to death persons whose guilt is by no means established" (p. 72). While many U.S. lawyers -- and nonlawyers -- share his dismay about this U.S. policy, Tomuschat's lack of interest in addressing U.S. government justifications for the policy seems shortsighted. The U.S. government has argued that targeted killings of terrorist suspects is permissible under the law of armed conflict, which, as lex specialis, displaces human rights law if terrorism can properly be viewed as a species of armed conflict.
On this issue, as on many others discussed throughout the book (U.S. perspectives on the self-execution of treaties, on the authority of the UN Human Rights Committee, and so on), Tomuschat's evident distaste for American exceptionalism does his readers a disservice. It is not a trivial matter when the world's sole superpower takes a dramatically different approach to the interpretation and enforcement of human rights than do many other nations, particularly since these outlier interpretations are also often shared by other great powers such as China and Russia. Yet it would be possible for a student to come away from reading Human Rights with the impression that the recent history of human rights law has been, on the whole, a story of ever increasing consensus on norms and ever increasing effectiveness of institutions, with dissent and noncompliance a concern only on the margins. From inside Europe, with its admirable and ever tightening network of transnational laws and institutions, such a story may seem a satisfying account of human rights law. To non-European readers, however, the lack of attention paid to contrary legal arguments made by the United States and other powers will be jarring, and Tomuschat's book would be more persuasive if it offered more critical discussion of countervailing legal views.
As it is, the book sometimes has a "see no evil" quality. Thus, the cataclysmic impact of September 11, 2001, is hardly felt in Tomuschat's book. This catastrophe was an American one, to be sure, and it is appropriate for American readers to be reminded that on the Richter scale of horrors that human beings have visited upon one another, the September 11 attacks barely register. Nonetheless, the U.S. government's response was instant and far-reaching. Between September 11, 2001, and the December 2002 closing date of Tomuschat's manuscript, the U.S. Congress passed the PATRIOT Act, restricting civil liberties for U.S. citizens. The U.S. invasion of Afghanistan and reliance on Northern Alliance proxy forces led to well-documented abuses of prisoners and civilians, and the subsequent U.S. detention of "unlawful combatants" at Guantanamo Bay and elsewhere. Reports of abusive treatment of U.S. detainees had also begun to emerge well before the closing date of Tomuschat's manuscript, and the legitimacy of torture was treated as a serious question by mainstream U.S. media.
These issues have preoccupied many in the human rights law community since September 11, 2001, because the U.S. government's response to the events of September 11 has echoed around the globe. To many critics, the U.S. government's "war on terror" policies amount to a repudiation of fundamental human rights and rule of law principles. When the world's sole superpower thumbs its nose at rule-of-law principles, the impact on the international legal order is significant. U.S. restrictions on civil liberties and U.S. interpretations of the law of armed conflict quickly bred copycats around the globe, as other governments with questionable human rights records used the U.S. example as an excuse for ever more blatant and violent repression of dissidents and minorities. For better or for worse, the global legal discourse changed after September 11. Yet little of this transformation is apparent in Tomuschat's book, giving it a strangely decontextualized feel.
This inattention to post-September 11 developments points to the most serious omission in Tomuschat's book, one which may dismay realists and idealists alike: his systematic failure to address issues of process and power. For the most part, the evolution of human rights law is presented as a series of technical developments that unfold with little guidance from human actors. Largely absent from Tomuschat's account is any sense of the tumult of history, the passionate contest over values and ideas, the catastrophes and compromises, the ceaseless struggle of countless individuals (both famous and obscure) over the nature, content, and delivery of "human rights."
Tomuschat notes, for instance, that in the era between World Wars I and II, "it had not yet dawned on legal writers that the international community had a legitimate general mandate in seeking to uphold and enforce standards of civilized conduct in the relationship between governments and their citizens" (p. 20). In Tomuschat's book, human rights law appears to be discovered as much as made; "legitimate" principles "dawn" on legal writers, and ultimately "civilized conduct" between governments and citizens comes to be required by international law. Tomuschat writes that, after the atrocities of World War II, "never again could it be maintained that human beings were placed, by law, under the exclusive jurisdiction of their home state" (p. 22). Of course, it could be so maintained, and, unfortunately, it continues to be so maintained by some states to this day. Tomuschat again: although states could not immediately agree, in the wake of World War II, on issues such as the prohibition of race-based discrimination, "compared to . . . Hitlerian barbarism[,] . . . these differences had little significance and were bound to disappear soon" (p. 22). And again: after World War II, "it was felt particularly necessary to reaffirm the worth and dignity of the human person. . . . It was therefore but natural that the newly established organs of the Council of Europe started immediately work on a conventional instrument designed to provide effective protection to human rights . . ." (p. 30).
Human rights law emerges ideologically in Tomuschat's account, because it is obvious, inevitable, and necessary. Although economic and social rights initially "both fascinated and frightened constitution-making bodies," eventually "such doubts as to the usefulness of economic and social rights were overcome" (p. 27). Precisely how these doubts (whose?) were overcome -- and through what process of struggle and debate -- is left unexplored. Similarly, Tomuschat observes that after the 1971 International Court of Justice's ruling that the South African apartheid system violated the UN Charter, "it was clear that the [Charter's] references to human rights . . . were to be viewed . . . as determinations establishing firm legal commitments for states" (p. 115). Clear to whom? Viewed by whom? Tomuschat does not say. Or, apropos of prohibitions on genocide: "the conclusion cannot be escaped that the international legal order has roots in a layer constituted by the moral conscience of mankind" (p. 193).
Realists will irritably object to the short shrift that Tomuschat gives the continuing role played by self-interest, power, and coercion in the formation and enforcement of international human rights law. Tomuschat acknowledges from time to time that the human rights records of many states are dismal, and that enforcement mechanism are often hopelessly inadequate, but this situation does not seem to give him pause, and his proposed "fixes" are technical and hortatory rather than political. For example, while acknowledging that pretrial detention time is excessive for suspects before the ICTY and the ICTR, he suggests merely that "resolute efforts should be undertaken to reduce the span of time suspects have to wait for their trial to start" (p. 289).
Idealists, as well as realists, may object to Tomuschat's lack of interest in issues of process. Largely excluded from his framework are people, ideas, and social movements; on Tomuschat's chessboard, states and institutions move about mechanically, more or less obeying a set of rules that is, to Tomuschat, appropriately kept finite. As he makes very clear, Tomuschat is interested solely in those human rights that can plausibly be said to have attained the status of "legal oughts." But he forgets that "legal oughts" emerge when enough people loudly and firmly debate and demand them -- and that our conception of human rights will therefore never be static. New actors, new ideas, and new struggles will always emerge. Today it is undeniably accurate to claim, as does Tomuschat, that rights such as the "right to development" or the "right to peace" lack "solid legal foundations" (p. 48). Perhaps they always will. But then again, fifty years ago the same might have been said of many of the other rights we today regard as fundamental.
All these criticisms are somewhat unfair, of course. Tomuschat might have chosen to write a different sort of book, but he did not -- and there is no particular reason why he should have. Readers will likely be disappointed if they open this book in search of the theoretical or the trendy. (One might also object to the lack of attention Tomuschat gives to women's rights, children's rights, non-Western cultures, the increasing role of multinational corporations, the nexus between human rights and development, new issues raised by globalization or the rise of terrorism, or similar topics.) But Tomuschat makes no extravagant claims for his book, and it more than achieves its straightforward goals.
Human Rights is deliberately, resolutely untrendy, and despite its limitations, there is much to be said for so restrained an approach. As Tomuschat notes wryly in his introduction, "The Olympic motto -- higher, faster, stronger' -- cannot be the leading maxim by which to measure the desirability of a development under review" (p. 5). Human Rights is a modest, careful book. As its title promises, it seeks to find a narrow path between realism and idealism, and Tomuschat is fully aware both of all that his book takes for granted, and of all that is beyond its scope. "The complex legal edifice which has been described in the preceding pages can do no more than remind states again and again that very precise duties are incumbent on them" (p. 319), he acknowledges in his conclusion. "The system rests on confidence and persuasion," and sometimes also on "coercion and ultimately even armed force" (id.). And "in the last resort, it is always the society concerned that must come to terms with its fate" (p. 321). For human rights to flourish, "human rights must permeate the whole texture of a given society" (id.).
Tomuschat has set out to offer a fairly traditional, "black letter" account of human rights law, with intelligent commentary. He provides precisely that, with erudition, clarity, and thoroughness.