Human Rights and Democracy

Discourse Theory and Global Rights Institutions

Eva Erman

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351929592
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Democracy
• Index: Politics & International Relations

This volume explores the relationship between human rights and democracy within both the theoretical and empirical field. It is a book within the tradition of deliberative democracy, although it focuses on global institutions and human rights rather than nation-state or federalist democracy. Eva Erman problematizes the absence of political rights in the global human rights discourse from a deliberative standpoint. Starting out from and at the same time criticizing Habermas' discourse theory of law and democracy, she makes a significant contribution to a discourse theory of human rights and applies it to a global rights institution, the United Nations' Commission on Human Rights. This is an innovative study that offers tools for democratizing existing global political institutions, and is therefore suitable for philosophers, political theorists, scholars of human rights and those interested in democracy.

Chapter 1

The Interdependence of Human Rights and Democracy

Introduction

When political scientists come up with new proposals for how to understand the international political order they are often met with scepticism. Not long ago, the cosmopolitan democratic theories that are taught today at most political science departments were, if not laughed at, at least looked upon with suspicion. It seems as if present political institutions, whatever ‘present’, are always insufficient to tackle the political problems they were created to solve. And there is much to indicate that today’s present is not an exception. Although today’s national and global political institutions are questioned in diverging ways, there seems to be general agreement that they are insufficient.¹ Some claim that they should be strengthened, others argue that they must be complemented or replaced with other political forms, associations and processes.

In an era in which questions about how to design political institutions are often limited to technical and administrative aspects, it becomes more important than ever before to return to some of the basic ideas of Ancient Greece, which are indeed relevant even today: the public space and the political dialogue between speaking and listening subjects. The present work developed from both a philosophical interest in these ideas and from an empirical interest in how they could be realized and implemented by institutional means. But more importantly, it developed from a more profound interest in language and communication and how the public space and the political dialogue could be related not only to democracy as is commonly done, but also to human rights.

This book adopts a discourse theoretical view of human rights. Starting out from the notion of communicative action and the idea that human rights and democracy are mutually constitutive – two central themes of discourse theory – it offers an alternative approach to human rights than supplied by present cosmopolitan democratic theories. It is not an alternative in the sense that it is incompatible with all cosmopolitan projects (although with some), but rather in that it focuses on other aspects of the international political order, thereby drawing slightly different conclusions on how to legitimize and implement human rights by democratic means.

Within political scientific research three democratic dimensions are elaborated on in relation to the international system: democratization within states, between states and of the international system.² While cosmopolitan democratic theories tend to focus on the relationship between the first two dimensions and how they affect the third dimension, this project primarily puts the third dimension in the limelight. A current problem of cosmopolitan theories seems to be that the international order has not been influenced by the triumphs of democracy around the world.³ Despite the fact that several nation-states have been democratized ‘inwards’, the international political system is still permeated by strategic action in line with nation-state interests. This is why the presumption by Daniele Archibugi et al that we must start from the first democratic dimension in order to promote the two latter ones is easily contested.⁴ We learn daily about democratic states not being very interested in democratization between states or democratization of the international system. Furthermore, concerning the role of alternative non-state actors, Archibugi et al claim that “it is not clear how these organizations, which might not be democratic in their structure or in their scope, would contribute to effective democratization.”⁵ But, arguably, if cosmopolitan theorists maintain that political actors who are not democratic inwards could not contribute to democratization, they use a narrow notion of democratization. From a discourse theoretical perspective, what democratic decision-making procedure is chosen is equally important as what participants are chosen. So even if we had a fully developed cosmopolitan democracy, with representative institutions and perfect representation in whatever sense, this would not be democratic if all actors used strategic action in line with self-interest, and political decisions were made solely through aggregative procedures.

Cosmopolitan democratic theories typically use the analogy of the individual as subject within the state (or some other kind of democratic unit) and the state (or some other kind of democratic unit) as subject within the international system, thereby assuming that the construction of an international system needs to be built on the democratic nucleus of every unit. But with a focus on human rights and international justice, a normative problem immediately arises: the peoples who are in the most need of these rights will perhaps be the last to belong to such a democratic unit, if, indeed, they do at all. Therefore, an underlying presumption of this project is that we must investigate new ways of looking at democratization both ‘inwards’ and ‘outwards’ in order to formulate and legitimize human rights through justified global institutions. As will be evident when an institutional design for the Commission on Human Rights (CHR) is developed in Chapter Five, this means to rethink central democratic concepts such as representation and participation and to establish clearer rules of procedure for the human rights discourse – rules which restrict the use of (nation-state) strategic action and promote argumentation, dialogue, processes of moral consciousness-raising and the socialization of human rights norms.

In David Held’s view, cosmopolitan democracy is of importance to create new political institutions that can coexist with the states system and revoke state sovereignty on those defined and demarcated fields of activities that have consequences which exceed their boundaries. By assuming that there is an evolutionary striving towards developing the international states system, Held adheres to democratic possibilities for the global political system that he claims realists cannot comprise by starting out from the notion of anarchy.⁶ At the same time, the presumption that democracy can only result from a nucleus of democratic units, made by Held and most cosmopolitans, is not defensible from a normative point of view. Even if democratization in most cases takes place from the bottom up, from the grass roots level, new forms of political participation and of deliberative processes from the top downwards could also contribute to defining a human rights arena stabilized by, for example, global institutions. Although there is an opposition between democracy (based on exclusion) and human rights (based on inclusion), there is anything but an opposition between democratic processes and human rights, from a discourse theoretical perspective.

Here I believe John Dryzek’s apprehension of ‘governance’ might be of assistance. Governance is something between ‘government’ advocated by Held and ‘anarchy’ advocated by realists. Similar to government, governance also requires institutions that have the capacity of solving conflicts and facilitating cooperation, but they do not have all the ways and means, the same access to material entities or the overall formal structure for binding decisions as a government normally has.⁷ In contrast to Dryzek, however, I claim that governance would not necessarily have to imply a loose structure of co-operation, as he describes it. Governance within a global institution could probably resolve problems by means of a binding decision structure even if it is not made up of entities that are entirely democratic. If we could not create a human rights institution with the authority of making binding decisions until all participants, delegates and units were democratic in the rigorous sense, we would have to wait a very long time. In fact, to claim that global rights institutions could not be at all legitimate until all its parts are democratic would be irresponsible. Instead, we should look upon the process the ‘reversed way’ and assume that the creation of such an institution would have a democratic influence on the entities involved. From the standpoint of the discourse theory developed in this book, democratic processes are useful without fully developed democracy, as governance without government in the strict sense. Being caught up in a liberal framework, cosmopolitan theorists have difficulty deepening their understanding of alternative processes of democratization.

This reversed way of approaching human rights through democratic means is defensible for both normative and pragmatic reasons. As was argued above, it is fairer for human beings from poor and politically underdeveloped regions if human rights institutions are developed also in this way, since they have to wait the longest for inclusion in a cosmopolitan apparatus in spite of the fact that they suffer the most. But pragmatic arguments are as important as normative ones in order to justify the ‘legitimation gap’, which by necessity appears as soon as we promote international institutions that involve non-democratic units and create conditions for democratization of these units ‘from above’.

One of the most important works on international norms and communicative behaviour in the human rights area is the work by Thomas Risse and a group of researchers involved in a transatlantic project. Not only do they show empirically that communicative features in the rights discourse already exist, i.e., that everything is not achieved through strategic action, but also that deliberation over human rights influences domestic praxis. Parts of their empirical material are documents of the Commission on Human Rights’ meetings and constitute an interesting complement to my own normative institutional analysis of the CHR.⁸

In this transatlantic project, the socialization of human rights norms in eleven selected countries from all parts of the world were studied in depth, e.g., Indonesia, Kenya, Tunisia, Poland, South Africa and Chile. The project included interaction among different actors: Western governments, norm-violating governments, domestic opposition in repressive states, international organizations and transnational advocacy networks (including NGOs in the human rights field, trade unions and churches). Inspired by discourse theory and building upon previous work,⁹ the results were analyzed by means of a proposed spiral model, which indicated that socialization of international norms into domestic practice goes through five stages where changes take place.

The starting-point in the spiral model is a repressive stage, a situation in a country in which the domestic opposition is weak. If a transnational advocacy network succeeds in gathering sufficient information, however, the norm-violating state could be put on the international human rights agenda. The next phase is a stage of denial, in which the accused government reacts by pleading to illegitimate intervention in its internal affairs. This denial stage is viewed as part of the socialization process because the denial itself indicates that a process of international socialization is under way.¹⁰ After that comes the tactical concessions stage, which is characterized by growing international pressure in which the repressive state often “seeks cosmetic change to pacify international criticism”.¹¹ In the following phase, called the stage of prescriptive status,

the validity claims of the international norms are no longer controversial, even if the actual behaviour continues violating the rules. The prescriptive status is achieved when governments ratify the respective international human rights conventions, including the optional protocols, when they institutionalize these norms in domestic law and create some mechanisms for citizens to complain about rights violations and when they change their communicative behavior accordingly.¹²

The last stage of the spiral appears when the behaviour becomes rule-consistent, that is, when human rights norms become fully institutionalized and a common practice of actors legislated and upheld by the rule of law.

What is of interest here is that communicative action and argumentation is the type of social interaction that increases from stage to stage. The analysis also shows that instrumental rationality, rhetoric and communicative rationality are involved to different degrees depending on the current phase at hand but that the successful empirical cases of human rights improvement indicate more use of argumentation and less of instrumental rationality and rhetoric.¹³ The only country in the case studies that experienced a backlash after reaching the tactical concessions stage was Tunisia. All other countries followed the stages of the spiral model.¹⁴

Risse uses different indicators to analyze power in the human rights discourse. For example, by scrutinizing the utterances of the speakers one could get information about what communicative conditions of equality in discourse are present. Situations where participants use their power from ‘the outside’, e.g., their status and rank, to put forward an argument could be an indicator of cheap talk and does not qualify as communicative rationality. Another indicator are cases where arguments become inconsistent, i.e., where participants change their arguments depending on the audience or the addressee. This could be a sign of strategic action. Concerning communicative rationality, it can be studied in more detail in situations where the instrumental interests of participants are used against the arguments being made. If participants change their position during the communicative process although their interests suggest otherwise, Risse presumes that we have probably witnessed persuasion.¹⁵

The overall conclusion drawn from the empirical cases is that although all the situations investigated are far from a Habermasian ideal speech situation in which power is absent, every situation involves the processes of arguing and persuasion and at least some actors are open to arguments and prepared to change their preferences in discourse. However, in order for a global institution to have any force, it is important to acknowledge that the process of consciousness-raising and of human rights implementation takes a long time. If this aspect is not included when elaborating on the prospects for global rights institutions with legitimate force in world politics, we cannot start working at all but only fall back on the anarchic view of the realists, according to which everything is power and strategic action is the only means of interaction available.

A global rights institution structured as a deliberative forum for decisionmaking could perhaps try to implement something similar to Thomas Pogge’s idea of a minimal conception of human rights, a conception that rules out “truly severe abuses, deprivation, and inequalities while still being compatible with a wide range of political, moral, and religious cultures.”¹⁶ By accepting the United Nations’ Declaration of Human Rights and the two Covenants, the international community has, at least on paper, recognized human rights as a basis of legitimation of politics. We should not forget the recent developments of and progress within international organizations (both governmental and non-governmental), which, presumably, indicate that a stronger international overlapping consensus concerning a minimal conception of human rights could perhaps be reached in the future.¹⁷

Three Concerns

This book can be seen as a philosophical, theoretical and normative institutional response to the empirical research of this transatlantic project. However, the choice of path has also been made as a response to three more general theoretical concerns that I believe are in need of further problematization within political science. Below, I describe these concerns and how they are addressed in this book. It is argued that a discourse theoretical approach could grasp some aspects of these problems that cannot as easily be captured by cosmopolitan democracy. Then, the overall aim is presented followed by an outline of the contents of each chapter.

The first thing that has aroused my concern are the conclusions dr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1. The Interdependence of Human Rights and Democracy
• 2. The Absence of Political Rights in the Rights Discourse
• 3. A Discourse Theory Based on Action Rules of Language
• 4. Legitimizing Rights Through Democratic Means
• 5. Towards an Institutional Design
• 6. The Reflexive Use of Rights
• Bibliography
• Index