國家權威與國際規範——合法性因素對國際人權法

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(1)State Authority vs. International Norms: Impacts of Legitimacy on the Practice of International Human Rights Law * Chih-Chieh Chou * *. TABLE OF CONTENTS Ⅰ. INTRODUCTION. Ⅲ.THEORETICAL DEBATES: STATE. Ⅱ.DEVELOPMENT OF INTERNA-. POWER AND INTERNATIONAL. TIONAL HUMAN RIGHTS LE-. HUMAN RIGHTS LAW. GAL SYSTEM. A.Criticism on the Effect of Interna-. A.Institutionalization of International. tional Human Rights Law B.Power, Sovereignty, and Human. Human Rights B.Diplomatic Cooperation and Multi-. Rights Law C.State Responses to International. lateral Efforts. Legal Norms. *. This paper is part of a research project titled “Exploring Interplays between International Norms and National Sovereignty from the Perspective of International Human Right Regimes: A Case Study on ASEAN Countries’ Practices（從國際人權建制探究國際規範與國家主權之互動關係：以東協國家之實踐為例）”（NSC 942414-H-006-010）. The author wishes to express his gratitude to two anonymous reviewers for their truly insightful critiques and comments. ** Chih-Chieh Chou（周志杰）is an Associate Professor of the Department of Political Science & Graduate Institute of Political Economy of the National Cheng Kung University（成功大學政治學系暨政治經濟研究所副教授）；Ph.D. in political science at State University of New York at Buffalo. Email:[email protected]. Received: April 29, 2008; accepted: March 2, 2009 責任校對：陳敬人. −113−.

(2) 2 政大法學評論. 第一○九期. A.Triggering Effects for Multilateral. Ⅳ .LEGITIMACY AND MULTILA-. Human Rights Legal Practices. TERAL EFFORTS ON INTER-. B.Halting Factors for International. NATIONAL HUMAN RIGHTS. Norms and Multilateral Efforts. LAW. C.States as Source Providers and Dip-. A.Linkage of Legitimacy and Human. lomatic Players for Human Rights. Rights Multilateralism. Practices. B. Functional Need for Legitimacy. D.States as Parties to Comply or Re-. Ⅴ.LEGITIMATE IMPACTS OF STATE. sist Legal Norms. AUTHORITY ON HUMAN RIGHTS MULTILATERALISM. Ⅵ. CONCLUDING REMARKS. −114−.

(3) 九十八年六月. State Authority vs. International Norms. 3. Abstract Human rights have always challenged the meanings and legitimacy of state authority under the context of sovereignty. The expansion of the international human rights law has reflected a growing need to reexamine state authority in terms of human rights protection, and to place further consideration on the legitimacy of multilateral efforts. More importantly, state compliance with international human rights law varies greatly; yet scholars know little about why some states adhere more closely than others. Therefore, this paper is to assess why states have chosen to ignore or comply with the human rights legal instruments available to them to deal with multilateral pressures on human rights advocacy, and what are the exact factors that exert an influence on the practice of international human rights law on the setting of potential tension between international norms and state authority. This paper, thus, places emphasis on how conflicts pertaining to the domestic and international legitimacy of authority greatly account for the nature of multilateral responses to human rights protection, and provides explanations on how the dynamics of legitimacy affect multilateral efforts in a state. This paper (1) argues for the centrality of legitimacy as a driving force for fulfillment of international human rights law. The findings further suggest that (2) a main determinant of effect in international human rights law concerns how multilateral and state actors addressing the legitimate problem determine the practice of human rights norms. (3) International human rights law and regime will continue to play an important role in international relations because of the way in. −115−.

(4) 4 政大法學評論. 第一○九期. which they constitute political legitimacy and a source of legal power for human rights protection. (4) The legitimacy of state authority is a more important determinant of state compliance. Multilateral pressures with norm legitimacy are more effective than direct lobbying and persuasion, and international efforts should be finely tuned to the state’s compliance to international law, if it is in line with its authority, as well as the building of multilateralism. As a result, (5) scholars should be cautious about claims that enforcement is central to the domestic implementation of international human rights law. As for the implication to human rights studies, (6) many human rights researches from the political perspective are associated with the logic of appropriateness while legal approach places emphasis on the logic of consequences. Future researches might bridge the falsely rationalist-constructivist dichotomy by accepting both logics. As such, richer explanations emerge for determining why states sometimes comply with legal norms and under what conditions. Keywords: Public International Law, International Human Rights Law; International Relations Theories, International Human Rights Regimes, Norm Domesticalization, State Authority, Sovereignty,. Legitimacy,. Multilateralism,. Intergovernmental. Organization, International Nongovernmental Organization. −116−.

(5) 九十八年六月. State Authority vs. International Norms. 5. I. INTRODUCTION States have strengthened and deepened their commitments to international human rights law and norms since the end of the Second World War. In light of this development, Reiff notes that the last fifty years have seen the “precarious triumph of human rights.” 1 In the world context, the international human rights legal system is a distinct and central global institution in several ways. First, it is universal in aspiration, applicable to all human beings regardless of their citizenship or residency. Second, the rights involved are commonly seen as rooted in natural law rather than mainly based in the positive contractual specifications of a particular national or supranational constitution or legal system. Third, the system is promulgated by and based in world level structures, such as international governmental and non-governmental organizations, international treaties and declarations, and international discourse.2 Finally, the scope of application of the human rights norms has greatly expanded, covering many more domains of social life than was the case within nation states. Taken as a whole, the post-Cold War expansion of the international human rights law has reflected a growing need to reexamine state authority in times of human rights protection, and more importantly, to place further consideration on the legitimacy of multilateral efforts.. 1 2. David Reiff, The Precarious Triumph of Human Rights, 8 NEW YORK TIMES 36-41 (1999). Ann E. Mayer, Reflections on the Proposed United States Reservations to CEDAW: Should the Constitution be an Obstacle to Human Rights, 23 HASTINGS CONST. L. Q. 727, 730 (1996).. −117−.

(6) 6 政大法學評論. 第一○九期. Optimism about the law’s political importance thus brought human rights to the arena of international politics. As Ignatieff observed, “since the end of the Cold War, human rights have become the dominant moral vocabulary in foreign affairs.”3 However, state compliance with international human rights law varies greatly, yet scholars know little about why some states adhere more closely than others to international legal norms.4 International norm research has understandably focused on demonstrating that norms matter, but has neglected questions about how they matter and the conditions in which they matter.5 A neoliberal institutionalist approach in international relations suggests that states adhere to international law and norms when they help resolve functional coordination problems with other states.6 Nevertheless, re3 4. 5. 6. Michael Ignatieff, Is the Human Rights Era Ending?, 5 NEW YORK TIMES 5 (2002). Norms are “standards of behavior defined in terms of rights and obligations” that in the international arena apply primarily to states, see STEPHEN KRASNER, INTERNATIONAL R EGIMES 3 (1983). Jeffrey Legro, Which Norms Matter? Revisiting the ‘Failure’ of Internationalism, 51 INT. ORGAN . 31, 63 (1997); Gregory Raymond, Problems and Prospects in the Study of International Norms, 41 MERSHON INT. S TU. REV. 205-45 (1997); Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 AM. POLIT. SCI. REV. 819-36 (2000). Advocates of Neoliberal institutionalism argue that states inhabit both material and social environments in international relations, and states undoubtedly desire economic and military power, as realists insist. However, they also interact in a world of interdependence with social understandings and norms, and want to be accepted as legitimate and equal actors within this environment. See ROBERT KEOHANE, AFTER H EGEMONY : C OOPERATION AND D ISCORD IN THE WORLD P OLITICAL E CONOMY (1984). For further discussions and propositions of neoliberal institutionalism on multilateral norms, see Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 INT. ORGAN. 887, 917 (1998); MARTHA FIN-. −118−.

(7) 九十八年六月. State Authority vs. International Norms. 7. cent research demonstrates that many international norms do not serve clear functional purposes. Rather than finding legal norms useful for serving functional needs, many states in fact resist many human rights instruments. Therefore, there is no account of the extent to which, and under what circumstances, nation states can deny claims to human rights in times of emergency. Additionally, the legal provisions for international human rights law are substantial and draw upon constitutional law, international customary law, treaty law, and international criminal law. Nevertheless, there remains a significant gap between the formal institutionalization of human rights and the strength of the international human rights regime as a whole. This gap is obviously widening as many legal instruments and processes have been resisted by some sovereign states with either democracy or authoritarianism. All of these puzzles are especially curious considering that scholars such as Risse and Ropp only recently argued that “human rights have become constitutive for modern statehood; they increasingly define what it means to be a ‘state’ thereby placing growing limits on another constitutive element of modern statehood, ‘national sovereignty.”7. NEMORE ,. 7. NATIONAL INTERESTS IN INTERNATIONAL SOCIETY 2 (1996); 周志杰，國內政治與國際人權規範的互動與磨合——從衝突到相容，中國國際法與國際事務年報，17卷，頁92-93，2005年12月。. Thomas Risse & Stephen C. Ropp, International Human Rights Norms and Domestic Change: Conclusion, in THE P OWER OF HUMAN RIGHTS: I NTERNATIONAL NORMS AND D OMESTIC C HANGE 236 (Thomas Risse, Stephen C. Ropp & Kathryn Sikkink eds., 1999).. −119−.

(8) 8 政大法學評論. 第一○九期. State authority today is apparently legitimated more by compliance with international human rights conventions than any eras in human civilization. While human rights may have appeared in the discourse of everyday statecraft, the institutions and legal processes of the international human rights remain shake.8 For instance, it is curious that no international criminal tribunal has since been used for indicting alleged perpetrators of crimes against humanity or war crimes in the global war on terror. The Israeli-Palestinian case illustrates this point. Frequent reports from human rights organizations have documented and condemned Palestinian suicide bombings against Israeli civilians as crimes against humanity.9 Nevertheless, legal options for prosecuting alleged criminals under the international customary process appear to be sidestepped. Instead, the Israeli military has pursued policies documented and condemned by human rights advocates as war crimes in their incursion against civilians in the occupied territories.10 Both of these reports have garnered little international attention. Similar findings can also be drawn from other conflict regions. A plausible answer to these puzzles centers on the norms governing legitimation of both state authority and multilateral efforts. Human rights have always challenged the meaning and legitimacy of political 8. 9 10. See Simmons, supra note 5; 周志杰，「國際人權法及實踐委員會」觀察會議報告，中華國際法與超國界法評論， 2卷 1期，頁 181、 186， 2006年 5月；周志杰，內外有別的人權倡議者？國際人權法在美國的實踐，中華國際法與超國界法評論，2卷2期，頁246-248、252，2006年12月。 Human Rights Watch, State Department Fails to Designate Partners as Violators of Religious Freedom (2007). Amnesty International, Government Crackdown on Dissent (2006).. −120−.

(9) 九十八年六月. State Authority vs. International Norms. 9. authority under the context of sovereignty. Since its inception, the concept of sovereignty has acquired its universal currency because it delineates between distinct bodies of political authority over specified domains of territory.11 As Barkin notes: The international normative structure defines states’ legitimate social purpose. Change in the accepted constitutional arrangements of legitimate sovereignty is most likely in the aftermath of major international events such as systemic wars, events so cataclysmic that they significantly alter the distribution of capabilities in the international system, while at the same time highlighting new ideas of the role of politics and the state.12 The social constitution of sovereignty was thus challenged by human rights first in the early post-World War II period and then in the post-Cold War period.13 However, a prime determinant of change in international human rights law still concerns the configuration of state power in the international system as determined by the legitimate factors for political authority.14 Therefore, the purpose of this paper is to assess why states have chosen to ignore or comply the legal instruments and norms available to 11. R OBERT WALKER , I NSIDE /O UTSIDE : I NTERNATIONAL R ELATIONS. AS. P OLITICAL T HE-. 169-74 (1993). 12 Jeffrey Barkin, The Evolution of the Constitution of Sovereignty and the Emergence ORY. of Human Rights Norms, 27 M ILLENNIUM: JOURNAL OF I NTERNATIONAL S TUDIES 234 (1998). 13 JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 208-09 14. (1989). 周志杰，同註6，頁88-89、120-121。. −121−.

(10) 10 政大法學評論. 第一○九期. them to deal with multilateral pressures for human rights advocacy, and what are the exact factors to influence on the practice of international human rights law in the context of confrontation between international norms and nation sovereignty.15 By considering Jackson’s claim that “the legal status of human beings in international law, as expressed by the law of human rights, is something that has been erected by sovereign states and could also, at least in principle, be dismantled by them,”16 this paper therefore considers how the dynamics of multilateral human rights law have played themselves in interaction with 15. In this paper, International Human Rights Law is distinguished from the International Humanitarian Law (the Law of War [jus in bello]). The former, rather than the latter, is focused by the theme and analysis of this paper. As for the scope and components of International Humanitarian Law, see Karl J. Partsch, Humanitarian Law and Armed Conflict, in ENCYCLOPEDIA OF PUBLIC I NTERNATIONAL LAW, Vol., 933 (1995); 丘宏達，現代國際法，頁1067-1075，2006年9月2版；俞寬賜，從國際人權法、國際人道法及國際刑法研究個人的國際法地位問題，2002年；周志杰，同註 8 （「國際人權法及實踐委員會」觀察會議報告），頁 185 。. 16. International Human Rights Law refers to the legally-binding International Bill of Human Rights (IBHR) and Core International Human Rights Instruments (CIHRI), and the non-legally-binding Universal Human Rights Instruments (UHRI). IBHR include Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESR), and two optional protocols for ICCPR. As for the components of the CHRI, see Table 1. Also see UNHCHR, The United Nations Human Rights Treaty System: An Introduction to the Core Human Rights Treaties and Treaty Bodies (The Human Rights Fact Sheet No. 30) 1-54 (2005); UNHCHR, International Law, available at http://www.ohchr.org/english/law/index.htm (last visited: 2008.12.01); 丘宏達，同前註，頁 454-458；廖福特，國際人權法—— 議題分析與國內實踐，頁5-6、68-69，2005年。 ROBERT H. JACKSON, QUAS -S TATES: SOVEREIGNTY, INTERNATIONAL RELATIONS AND THE. THIRD WORLD 111 (1995).. −122−.

(11) 九十八年六月. State Authority vs. International Norms. 11. with sovereign states, and whether these multilateral human rights legal instruments and framework constructed since their inception will continue to play some role in shaping state behavior. An emphasis will be placed on how conflicts on the domestic and international legitimacy of authority greatly account for the nature of multilateral responses to human rights protection and affect the interaction of nation states with multilateral efforts. In the following analysis, a short overview of the institutional and legal framework for international human rights will be sketched. It maps the processes available for the protection of human rights in international law. As with law in general, the section analyzes the theoretical criticism on the interplays between state authority and human rights norms. This section firstly focuses on examining how the international legal processes for human rights are employed in sovereign states with considerations given to power and authority. In terms of state’s position on external legal norms, various theorists in international relations and law point out that codification does not guarantee compliance or an effective legal system. By focusing on the legitimacy, the third section explores the centrality of legitimacy and legitimization as driving forces for fulfillment of international human rights law. I then consider the roles of states within this framework marked by legitimacy conflicts, and explain how the dynamics of legitimacy affect multilateral efforts in a sovereignty. This paper concludes by drawing implications for the state and multilateral actors in practice of international human rights law, and offering implications for both legal and political studies in international human rights norms as a whole.. −123−.

(12) 12 政大法學評論. 第一○九期. II.DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LEGAL SYSTEM The nineteenth century saw the growth of an individualist social ontology and the recognition of the individual as a political actor. However, participation was limited to those social groups or classes who were reluctantly granted rights because of their contribution to nationalist projects.17 Therefore, rights were granted only to the nation state. This precept upheld the notion that sovereignty and non-intervention are absolute. Nevertheless, these suppositions were challenged significantly in the aftermath of World War II. As Cassese notes, “respect for human dignity thus came up against its first stumbling-block in [Nazi] Germany’s firm stance that national sovereignty could not tolerate any international interference in international affairs.” 18 The Holocaust highlighted the fact that many of the heinous acts carried out by nation states against their own citizens were not prohibited by international law. Perpetrators could legitimate genocide as a means of obtaining further national unification.. A. Institutionalization of International Human Rights The advent of the United Nations (UN hereafter) system in 1945 thus marked a transformative moment in international relations. The UN Charter and the 1948 Universal Declaration of Human Rights. 17. Hudson Meadwell, The Long Nineteenth Century in Europe, in EMPIRES, SYSTEMS. S TATES: G REAT TRANSFORMATIONS IN INTERNATIONAL P OLITICS (Michael Cox, Tim Dunne & Ken Booth eds., 2001). 18 ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 21 (1990). AND. −124−.

(13) 九十八年六月. State Authority vs. International Norms. 13. (UDHR) fundamentally changed the political ascription of the individual in international politics.19 No longer were rights accorded to individuals via the nation state only. It was unanimous amongst UN member-states that “individuals were no longer to be taken care of on the international level qua members of a group (minority or particular category); they began to be protected qua single human beings.”20 Moreover, the UN system introduced not only individual rights guaranteed by international law, but also the concept of criminal responsibility for state officials.21 The International Military Tribunal (IMT) at Nuremberg in 1945 and the Tokyo Trials of 1946 affirmed the principle that individuals have duties to other human beings that transcend those imposed by particular states. As Cassese contends, “state representatives (high-ranking officers, politicians, prominent administrators or financiers, as well as men in charge of official State propaganda) could also be made answerable in international gatherings for gross misconduct. Those men were no longer protected by state sovereignty.” 22 Significantly, these crimes were tried against individuals rather than states or entire populations. The trials at Nuremberg and To19. 20 21 22. Michael Posner, Foreword: Human Rights and Non-Governmental Organizations on the Eve of the Next Century, 66 FORDHAM L. REV. 627 (1997); 王玉葉，歐洲法院與人權保護，頁 2， 2000年；李孟玢，論世界人權宣言之基本性質與法律效力，中正大學法學集刊，1期，頁334-335，1998年7月；丘宏達，同註15，頁 451-452。 CASSESE, supra note 18, at 384; see also 鄧衍森，從歐洲人權法院的實踐論國家主權與人權保障，載：法治與人權，頁65-66，2006年。 Ilia B. Levitine, Constitutional Aspects of an International Criminal Court, 9 N.Y. INT’L L. REV. 27 (1996). CASSESE, supra note 18, at 64-65.. −125−.

(14) 14 政大法學評論. 第一○九期. kyo thus illustrate the formative institutionalization of conventions against genocide, war crimes, and crimes against humanity that are designed to place constraints on the legitimate use of force. However, human rights represent more than regulations governing the use of force. Human rights also expand the parameters of state responsibility. On a very basic level, human rights help to define the “rules under which people who pursue diverse goals in a complex, rapidly changing and highly interdependent world might hope to live in dignity and peace.”23 The construction of an international human rights legal system thus began soon after the advent of the UN system. According to Donnelly’s definition, “[human rights] regimes are political creations set up to overcome perceived problems arising from inadequately regulated or insufficiently coordinated national action.”24 Donnelly further argues that the international human rights regime and law arose from a growing ‘moral demand’ within international society met by a group of states that were willing to ‘supply’ international institutions to regulate the behavior of states against gross violations of human dignity.25 Regime construction was pursued as an attempt to formalize international affairs and regulate state behavior on human rights issues. As Donnelly argues, “the most striking pattern is the nearcomplete absence of international human rights regimes in 1945, in contrast to the presence of several in all the later periods… we can also. 23 24 25. Michael Freeman, Human Right, Democracy and Asian Values, 9 THE P ACIFIC REV. 358 (1996). DONNELLY, supra note 13, at 210. DONNELLY, supra note 13, at 210-11.. −126−.

(15) 九十八年六月. State Authority vs. International Norms. 15. note the gradual strengthening of most international human rights regimes over the last thirty years.”26 Although the UDHR provided the nominal framework for subsequent human rights instruments, the International Bill of Human Rights was created to explicate the procedural definitions of human rights and to ideologically appease the rival superpowers of the Cold War.27 The International Bill of Human Rights (IBHR) was later followed by particular conventions on genocide, women’s rights, refugees, the rights of the child, and torture to name only a few.28 With these subsequent human rights instruments, the socalled “core international human rights instruments” have formed crucial elements of international human rights law (see Table 1). Although the process was protected, the core instruments entered into practice as legally binding for all party states. Their ratification led to the creation of supervising bodies and committees in the UN system for the express purposes of monitoring the implementation and enforcement of the all core instruments.29. 26 27 28 29. DONNELLY, supra note 13, at 153. Supra note 15. Supra note 15. UNHCHR, The United Nations Human Rights Treaty System: An Introduction to the Core Human Rights Treaties and Treaty Bodies. UNHCHR, Human Rights: A Basic Handbook for UN Staff 3 (1997); 陳隆志、黃昭元、李明峻、廖福特，國際人權法——文獻選集與解說，頁2-51，2006年；廖福特，同註15，頁69。. −127−.

(16) 16 政大法學評論. 第一○九期. Table 1: Names and Signatures for Core International Human Rights Instruments*. 30. Number of SigYear of Open nature (till Januto Sign ary 2009). Name of Law. 30. International Covenant on Civil and Political Rights, ICCPR. 1966. 153. International Covenant on Economic, Social and Cultural Rights, ICESCR. 1966. 160. International Convention on the Elimination of all Forms of Racial Discrimination, ICERD. 1966. 173. Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW. 1979. 185. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT. 1984. 146. Convention on the Rights of the Child, CRC. 1990. 193. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ICRMW. 1990. 40. ICCPR-OPT1. 1976. 111. ICCPR-OPT2. 1989. 57. For the details of parties lists for specific treaties, please see “Human Rights” of the Multilateral Treaties Deposited with the Secretary-General, available at http:// treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en (last visited: 2009.02.20).. −128−.

(17) 九十八年六月. State Authority vs. International Norms. 17. * This table does not include the UDHR. **This Table is organized by the author and is based on following sources: (1) “Chapter IV” of the Multilateral Treaties Deposited with the SecretaryGeneral, available at http://treaties.un.org/Pages/ParticipationStatus.aspx (last visited: 2009.02.20); (2) UNHCHR, Status of Ratification of the Principal International Human Rights Treaties, New York: United Nations, (June 16) 2006, available at http://www.unhchr.ch/pdf/report.pdf (last visited: 2008.10.28); (3) UNHCHR, The United Nations Human Rights Treaty System: An Introduction to the Core Human Rights Treaties and Treaty Bodies (The Human Rights Fact Sheet No. 30), Geneva: Office of the United Nations High Commissioner for Human Rights, 2005, pp.1-54; (4) UNHCHR, International Law, available at http://www.ohchr.org/english/law/index.htm (last visited: 2008.10.28). ***“Ratification” in this Table also includes the parties of “Succession” or “Accession.”. B.Diplomatic Cooperation and Multilateral Efforts These formal bodies are also supported by parallel developments in diplomacy. Established in 1946, the UN Commission on Human Rights remains the central forum for negotiating international human rights issues and official documents. Shaken by the fall of the Berlin Wall and the decline of Cold-War bipolarity, events such as the reunification of Germany, the collapse of the USSR, democratization in Eastern Europe, Asia and Latin America, the Tiananmen Square Massacre, and the end of apartheid in South Africa led to an increasing belief in the global pertinence of the human rights project.31 The office of the United Nations High Commissioner for Human Rights was established in 1993, giving the High Commissioner the mandate to deal directly 31. For further discussion, please see Wendt, 1992: 391.. −129−.

(18) 18 政大法學評論. 第一○九期. with all governments on all issues relating to human rights in a personal capacity rather than as a state representative. As previously noted, the end of the Cold War led to speculation that human rights were becoming constitutive of state sovereignty. Although the September 11th event has since challenged this assumption, optimism over the salience of human rights was nonetheless plausible given some of the developments in international law, particularly in the post-Cold War period. As Bassiouni argues, “traditional sovereigntybased arguments against the recognition or application of internationally protected human rights are no longer valid because of the vast array of applicable treaties, the customary practices of states, and the legally binding nature of general principles of international law which, in this context, represent the convergence of treaties, customs, national legislation, and jus cogens.”32 A variety of legal processes are thus available in international law to indict suspected perpetrators of human rights violations. The expansion of international criminal law is most notably illustrated with the near prosecution of Augusto Pinochet in a municipal court, and the trial of Slobodan Milosevic in The Hague. For better or for worse, these developments reflect a growing trend toward the ‘externalization of justice’ in the international sphere as the norm in ways that transcend traditional notions of sovereignty.33 32. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying In-. ternational Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT. L. 238 (1993). 33 Mark A. Drumbl, Juridical and Jurisdictional Disconnect, 12 FINNISH Y EARBOOK OF I NT .. L. 131-53 (2001); Chandra Lekha Sriram & Brad R. Roth, Introduction: Externalization of Justice— What Does It and What is at Stake?, 12 FINNISH YEAR-. −130−.

(19) 九十八年六月. State Authority vs. International Norms. 19. The advent of the International Criminal Court (ICC) is one such development that attempts to avoid the problems previously associated with ad hoc tribunals. The ICC was launched with the adoption of the 1998 Rome Statute, although its foundations stem from the postwar trials at Nuremberg and Tokyo. The promotion of individual human rights is central to the Court’s mandate albeit limited to prosecuting acts of genocide, war crimes, and crimes against humanity including sexual violence.34 As the statute falls under the domain of treaty law, the court acts as an extension of the international customary laws governing human rights protection.35 In the long run, the permanent court will be supposed to possess authority as well as the national judicial proceedings of any state party to the ICC and any state after direct referral by the UN Security Council.36 Overall, the international human rights legal system consists of enforceable core treaties, unenforceable declarations and treaties, monitoring and advocacy bodies, as well as informal and formal diplomatic. BOOK OF I NT . 34. 35. 36. L. 3-7 (2001). John R. Bolton, Courting Danger: What’s Wrong with the International Criminal Court, 54 THE NATIONAL INTEREST 60-71 (1998); Mahnoush H. Arsanjani, Developments in International Criminal Law − The Rome Statute of the International Criminal Court, 93 AM. J. INT. L. 22-43 (1999); Danesh Sarooshi, The State of the International Criminal Court, 48 INT. COMP. L.Q. 387-401 (1999). ANNE-M ARIE S LAUGHTER, A NEW WORLD O RDER 80 (2004); Ved P. Nanda, The Establishment of a Permanent International Criminal Court: Challenges Ahead, 20 HUM. RIGHTS QUART. 414 (1998). United Nations Department of Public Information, Setting the Record Straight: The International Criminal Court (1999), available at http://www.un.org/News/facts/ Iiccfact.html.. −131−.

(20) 20 政大法學評論. 第一○九期. processes. The individual has become a legal subject entitled to the procedural right to access international tribunals or initiate proceedings before an international body for the purpose of ascertaining whether the State in question has violated the treaty.37 The entitlement of individual human beings to make claims in international law for legal remedy marks a novel development. However, despite this significant change in the legal order, violations continue as the international community proves only marginally more adept at coordinating efforts to enforce human rights in the post-Cold War period than in previous decades. Legal scholars and human rights experts have too often neglected how power and interest affect the constitution of the legal order and how legal processes actually function politically.. III.THEORETICAL DEBATES: STATE POWER AND INTERNATIONAL HUMAN RIGHTS LAW A.Criticism on the Effect of International Human Rights Law Some criticisms have been launched pertaining to the general efficacy of the legal provisions for human rights. Legal criticisms are based on four main arguments: (1) procedural rights are not granted a priori but only through treaties which can only pertain to party states; (2) procedural rights of individuals’ petitions are quite different from those under domestic systems, because the international bodies responsible for their adjudicating are generally not judicial in character although they may behave in accordance with judicial principles; (3) interna37. Janina W. Dacyl, Sovereignty Versus Human Rights: From Past Discourses to Contemporary Dilemmas, 9 JOURNAL OF REFUGEE STUDIES 153 (1996).. −132−.

(21) State Authority vs. International Norms. 九十八年六月. 21. tional proceedings are often hindered by limitations concerning the collection and admission of evidence; and (4) verdicts are often unenforceable.38 Despite these criticisms, Cassese argues that “the existing international systems for protecting human rights which depend on the initiative of the very beneficiaries of the right in question are no less effective than other international devices for ensuring compliance with international law. One should therefore not be discouraged by the paucity of international mechanisms based on individuals’ petitions.”39 Moreover, legal claims can be made on the basis of international customary law that all states have international human rights obligations regardless of whether or not they are party to human rights treaties. The international customary process can support the argument that, by ratifying the UN Charter, all member states accept the general human rights obligations outlined in Articles 55(c) and 56 such that subsequent human rights treaties merely elaborate upon those obligations rather than transform them.40 This debate is predicated on the role and definition of power in the international customary process. According to Byers, “it is a debate about the exclusive competence which States have traditionally had to apply power in respect of all matters within their borders which do not affect other states, and the ability of international society to challenge the exclusivity of such applications through customary rules.”41 38 39 40 41. ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 101-02 (1986). Id. at 102-03. MICHAEL BYERS, CUSTOM, POWER LATIONS AND. AND THE. P OWER. OF. RULES: INTERNATIONAL R E-. CUSTOMARY INTERNATIONAL LAW 43-44 (1999).. Id. at 45.. −133−.

(22) 22 政大法學評論. 第一○九期. B. Power, Sovereignty, and Human Rights Law Unfortunately, a divide has tended to stifle cross-disciplinary research between scholars of international law and international relations.42 Since Hans Morgenthau’s influential writings on the subject from the mid-1940s, subsequent theorists of the latter tradition have, on the whole, remained skeptical of international legal processes.43 In particular, Morgenthau believes in the weakness of the international legal order in the absence of centralized authority and the tendency of formal law to be corrupted by power, and hence bear little association with political outcomes.44 To Morgenthau, “international law is a primitive 42. Stephen J. Toope, Emerging Patterns of Governance and International Law, in THE ROLE. POLITICS: ESSAYS IN INTERNATIONAL R ELATIONS LAW 91-108 (Michael Byers ed., 2000). 43 Hans J. Morgenthau is the founder of classic realism in international relations. He OF. LAW. IN I NTERNATIONAL. AND I NTERNATIONAL. defines the core principles of international politics by arguing: “Whatever the ultimate aims of international politics, power is always the immediate aim. The struggle for power is universal in time and space and is an undeniable fact of experience.” With his famous work, Politics Among Nations, published in 1948, Morgenthau declares war on legalistic and moralistic interpretations and provides the realist theory. In terms of international norm, he argued that international law and morality are constraints on the struggle for power. He also applies realist philosophy to human rights issues and stresses the need for enforcement and practical morality. He tried to explain the tensions between moral principles (i.e. multilateral norms) and political necessities (i.e. national authority and interests) in world politics. See Afred J. Hotz, Morgenthau’s Influence on the Study of International Politics, in TRUTH AND TRAGEDY: A T RIBUTE TO HANS J. M ORGENTHAU 316-21 (Hans J. Morgenthau, Kenneth W. Thompson & Robert J. Myers eds., 1984); HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE (1978). 44 Id. at 279-88; Andrew Hurrell, International Law and the Changing Constitution of. −134−.

(23) 九十八年六月. State Authority vs. International Norms. 23. type of law resembling the kind of law that prevails in certain preliterate societies” because of its decentralized nature that renders it an ineffective mechanism in the struggle for power and peace in international relations.45 This divide is fueled further by what Antonio Cassese and others call the “end of the magnificent illusion.” It became increasingly clear by the late 1990s that the UN Charter was unable to provide effective answers to the problems of international and internal conflict. Yet these assumptions discount the influence of law on state behavior. International law is not a system of absolute legal rules that lack central authority and the means of enforcement. International law is instead a system of legal relations.46 Thus, while international relations delves to some degree into the effect of power on legal processes, it often neglects the effect of law in shaping power relations in the first place. As Hurrell argues, “legal rules and relations are important, then, in so far as they constitute the game of power politics. But they are also important more directly in stabilizing and legitimizing the power of particular actors.”47 Hurrell’s criticism is directed principally against realism. He argues further that:. International Society, in THE ROLE OF LAW IN I NTERNATIONAL P OLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 328 (Michael Byers ed., 2000). 45 MORGENTHAU, supra note 43, at 281. 46. Philip Allott, The Concept of International Law, in THE R OLE OF LAW IN I NTERNA-. POLITICS: ESSAYS IN I NTERNATIONAL RELATIONS 74 (Michael Byers ed., 2000). 47 Hurrell, supra note 44, at 330. TIONAL. −135−. AND I NTERNATIONAL. LAW.

(24) 24 政大法學評論. 第一○九期. Neo-realists fail to appreciate the importance of norms and of law to the analysis of power. They mistakenly view norms, rules, institutions, and values as mere reflections of material forces. Power remains central to the analysis of international relations, but power is a social attribute. To understand power we must place it side by side with other quintessentially social concepts such as prestige, authority, legitimacy and legality. Indeed, it is one of great paradoxes that, because it so resolutely neglects the social dimensions of power, realism is unable to give a full or convincing account of its own proclaimed central category.48 While Morgenthau recognized the distinction between legitimate and illegitimate power, he perhaps did not take the implications of this distinction far enough. He states, for instance, that “legitimate power, which can invoke a moral or legal justification for its exercise, is likely to be more effective than equivalent illegitimate power, which cannot be so justified. In other words, legitimate power has a better chance to influence the will of its objects than equivalent illegitimate power.”49 Law must therefore not be measured in absolute terms, but by its relative effect on social power relations. An analysis of human rights practice in international arena must consequently account for the role of the international human rights legal norms in shaping power relations between states. Needless to say, state authority and inter-state interactions are crucial in determining the extent to which it can shape power relations. 48 49. Hurrell, supra note 44, at 330. MORGENTHAU, supra note 43, at 35.. −136−.

(25) State Authority vs. International Norms. 九十八年六月. 25. While human rights are no less ‘real’ than material interests, state policy nonetheless tends to be based on objectives that are more readily tangible.50 These insights do not suggest, however, that human rights make no contribution in shaping the power relations of international politics. Indeed, historical examples show the contrary, as in the case of decolonization. Despite the Cold War tensions, “by the mid-1960s, Afro-Asian states formed the largest voting bloc in the UN. These countries, which suffered under colonial domination, had a special interest in human rights.” 51 Human rights were emphasized as justifications against colonial rule. Moreover, these trends led to the creation of the International Convention on the Elimination of All Forms of Racial Discrimination, which was opened for signature and ratification in 1965 and adopted in 1969. Human rights were clearly crucial in establishing a new post-colonial order and the international acceptance of the racial equality norm. Notable research conducted by Klotz demonstrates that this human rights principle has abetted the development of the international norm against apartheid in South Africa, which cannot be explained on purely instrumental grounds.52 Human rights thus derive their import not from material resources, but from their ability to challenge on normative grounds the organization of power and authority that ostensibly legitimates certain types and applications of violence.. 50 51 52. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 137 (2002). Id. at 7-8. AUDIE KLOTZ, NORMS. IN. I NTERNATIONAL RELATIONS: THE S TRUGGLE AGAINST. APARTHEID (1995).. −137−.

(26) 26 政大法學評論. 第一○九期. This is not to say that human rights can be divorced from power. Indeed, the growth in the international human rights law has been achieved only through incremental gains and setbacks in the bargaining process between numerous political actors over several decades. Power, interest, and political will have been involved at every stage. As witnessed during the Cold War, human rights were even subject to periodic manipulations by the powerful states. Power and inequality place strain on the international legal order because large and powerful states have options. They have the power to shape the agenda of international law and international institutions and to use direct coercive power in support of their own interests. Yet these considerations do not license the claim that human rights have lost all meaning simply because they are susceptible to periodic manipulations of power and interest. Human rights regimes remain a source of legitimacy from which the victims of oppression and brutality can assert legal claims against alleged perpetrators. By limiting certain forms and applications of coercive power, human rights narrow the range by which states can legitimately exercise force. Even powerful states are thus constrained by the ‘settled 、 norms’ of international human rights obligations. 53 54 States must endorse and abide by these obligations or at a very minimum, pay lip service to and provide justifications against them. Therefore, the question of human rights practice is not whether the era of human rights has come and gone, but whether human rights mul-. 53 54. A “settled norm” exists where any argument or act which contravenes or opposes the given norm is commonly regarded as requiring special justification. MERVYN FROST, ETHICS IN INTERNATIONAL RELATIONS 105 (1996).. −138−.

(27) 九十八年六月. State Authority vs. International Norms. 27. tilateralism will play a role in shaping legitimate state action. More than a question of measuring mere compliance with international human rights standards, this is a question about the political will within international society to enforce international human rights law. It is a question about whether the multilateral legal norms can gain sufficient legitimacy to mitigate the resistance from states and whether or not the tasks of norm legitimation on the setting of domestic-international interplays will have any significant implications. Analysis must consequently turn to how human rights will impact the behavior of certain types of states.. C.State Responses to International Legal Norms Whether and how international legal norms influence states is a matter of sharply contrasting views among theorists in international human rights studies.55 Realists are quite skeptical of the influence of international law for well-known reasons, including fear of cheating, state concerns for relative gains, and the brute power fact that states simply have more resources than transnational or intergovernmental actors.56 From a power perspective, we should not expect unwanted norms such as human rights to have much influence over states. States have no natural incentive to cooperate with other states on human rights, and human rights groups have few material resources to induce compliance. Even when states impose sanctions on norm-violating gov-. 55 56. Legro; Raymond; Simmons, supra note 5. For a summary of this line of argument, see John J. Mearsheimer, The False Promise of International Institutions, 19 INT. SECURITY 5-49 (1994).. −139−.

(28) 28 政大法學評論. 第一○九期. ernments, realists argue that sanctions fail for three reasons.57 First, strong nationalism allows even weak states to withstand international pressure. Second, states can use substitution or other methods to mitigate the damage of sanctions. Third, leaders can protect themselves by shifting the harm from sanctions onto politically marginal groups. Constructivists and neoliberal institutionalists, on the other hand, argue that international institutions can have a profound effect on state practices, even in difficult issue areas such as human rights.58 In this view, “States are embedded in dense networks of transnational and international social relations that shape their perceptions of the world and their role in that world. States are socialized to want certain things by the international society in which they and the people in them live.”59 Recent constructivist theories meet realist half-way by arguing that states inhabit both material and social environments.60 States undoubtedly desire economic and military power, as realists insist, but they also 57. Robert A. Pape, Why Economic Sanctions Do Not Work, 22 INT. SECURITY 93 (1997);. Clifton Morgan & Valerie L. Schwebach, Fools Suffer Gladly: The Use of Economic Sanctions in International Crises, 41 INT. STUD. QUART. 27-50 (1997); TOM NAYLOR, PATRIOTS AND PROFITEERS: ON ECONOMIC WARFARE, EMBARGO BUSTING, AND STATESPONSORED CRIME (1998). 58 See Risse & Ropp, supra note 7; John Meyer, John Boli, George Thomas & Francisco Ramirez, World Society and the Nation-State American, 103 J. SOCIO. 144-81 (1998); KEOHANE, supra note 6. 59 FINNEMORE, Supra note 6. 60. Finnemore & Sikkink, supra note 6, at 887-917; Thomas Risse & Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practices: Introduction, in THE P OWER OF HUMAN RIGHTS: INTERNATIONAL N ORMS AND D OMESTIC C HANGE 1-38 (Thowas Risse, Stephen C. Ropp & Kathryn Sikkink eds., 1999).. −140−.

(29) 九十八年六月. State Authority vs. International Norms. 29. interact within a web of social understandings and norms, and want to be accepted as legitimate and equal actors within this environment. Realizing this fact, multilateral actors socialize states into adopting international norms through a combination of social, political and economic pressure, rational discourse and advocacy, and a gradual process of domestic institutionalization.61 States respond to these methods because of their interests in maintaining their power, their identities as states, and their desire to be included as legitimate members of the international community. Both realists and constructivists predict that the influence of international norms is relatively uniform across different states, though in very different ways. Realists suggest that multilateral norm influence is uniformly close to nothing, while constructivists emphasize that norms and institutions have a strong and homogenizing effect on all states. It is fair to say that international human rights norms can have powerful socializing effects on states, while state authority also have significant impacts on practices of human rights law.62 This paper rejects the implication that all states are equally susceptible to socialization. Rather, legitimacy and legitimization of international efforts on human rights constitute key condition variables that determine the extent of international norms influence on state behavior. In this view, which fits with a liberal approach to international relations, we should expect significant variation in state responses to international norms even when pressures 61 62. Risse & Sikkink, id. David Weissbrodt & Teresa O’Toole, The Development of International Human Rights Law, in THE U NIVERSAL DECLARATION Andrus & Sonia A. Rosen eds., 1988).. −141−. OF. H UMAN RIGHTS 1948-88 (Beth.

(30) 30 政大法學評論. 第一○九期. to comply are uniformly quite high.63 Such arguments respond to Keohane and Martin’s commonsensical remark that “institutions sometimes matter, and… it is the worthy task of social science to discover how, and under what conditions, this is the case.”64 Additionally, utilitarian models of political behavior dictate that states seek to change their commitments to the norms if it suits their interest. However, such an alteration is potentially dangerous for two main reasons. First, reconstituting the legal norms threatens the established conventions that define common standards of appropriate behavior in the treatment of individuals. The dismissal of the international human rights instruments thus invites division or instability in the international order. The norms’ decline therefore poses significant implications on protection of human rights. Bell’s comparative legal study of civil and religious conflict has shown that those peace accords which have ultimately failed are those that have made little or no allowances for human rights provisions.65 While more empirical work undoubtedly needs to be done on the subject, it is reasonable to hypothesize that blatant disregard for human rights norms has only served to exacerbate the conflict. Pursuing multilateral and legal options for the persecution of alleged war criminals and perpetrators of crimes against humanity may therefore be a more viable long-term avenue for mitigating escalation. As Krasner notes, “conventions, even though they are entered into vol63. Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of Interna-. 64. tional Politics, 51 INT. ORGAN. 513-53 (1997). Robert Keohane & Lisa L. Martin, The Promise of Institutionalist Theory, 20 INT.. 65. SECURITY 39-51 (1995). CHRISTINE BELL, HUMAN RIGHTS AND PEACE AGREEMENTS (2000).. −142−.

(31) 九十八年六月. State Authority vs. International Norms. 31. untarily and even though they have no provisions for enforcement, can alter domestic authority structures by introducing external sources of legitimacy.”66 Indicting alleged perpetrators in an international court will provide this external source of legitimacy, and can therefore alleviate the costs of coercion and help to bring domestic actors into congruence with international norms. Second, a reconstitution is potentially destabilizing for the international order because it forces a division between advocates and opponents. In other words, a reconfiguration places strain on the international legal system as a whole, as well as on the prospects for multilateralism. International law provides stability and order to international relations by imparting a framework for action and expected outcomes by which interests may be pursued.67 As Charney states, “the international community has a need for rules to impart a degree or order, predictability and stability to relations among its members. The rules of the system also permit members to avoid conflict and injury, and promote beneficial reciprocal and cooperation relations.”68 Thus, Hurrell emphasizes that all political actors including “strong states need law and institutions to share burden and to reduce the costs of promoting their interests by coercion. Even imperfectly legitimated power is likely to be much more effective than crude coercion.”69 66 67. STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 121 (1999). Arthur Watts, The Importance of International Law, in THE ROLE OF LAW IN INTER-. POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND I NTERNATIONAL LAW 5 (Michael Byers ed., 2000). 68 Jonathan Charney, Universal International Law, 87 AM. J. INT. L. 532 (1993). NATIONAL. 69. Hurrell, supra note 44, at 344.. −143−.

(32) 32 政大法學評論. 第一○九期. IV.LEGITIMACY AND MULTILATERAL EFFORTS ON INTERNATIONAL HUMAN RIGHTS LAW A.Linkage of Legitimacy and Human Rights Multilateralism Issues of legitimacy structure debates on multilateral effects of human rights practices at two levels. First of all, states may accept or refuse the legitimacy of multilateral authorities in making decisions, monitoring states, creating standards and using control mechanisms.70 Secondly, states have to position themselves on the legitimacy of human rights affair. Hence, legitimacy battles came to be fought on other grounds, next to the authority debate, conflicts played themselves out over substance, action/non-action, and compliance, finally over the shape of multilateral efforts.71 Confrontation on the ground of legitimacy is thus key to understanding international status quo and change on human rights norms. This state of affairs is amplified by the main features of human rights multilateralism, which make it especially prone to such conflicts. It is highly fragmented, disseminated and proliferating, without any centralized decision-making. The development of human rights law is consequently piecemeal and always in the process of being complemented, without any linear pattern but rather as a mix of stalemates, continuity and breakthroughs. Outcomes are evolutionary, in the sense that the fate 70. Authority is defined in its triple dimension of formal prerogative, possession of. knowledge (to be an authority in a field) and a status giving influence over others. On the questioning and dispersion of authority at the international level, see Strange (1996). 71 DONNELLY, supra note 13, at 210-12.. −144−.

(33) 九十八年六月. State Authority vs. International Norms. 33. and course of a decision or mechanism will not necessarily resemble anything near its makers’ initial intent or expectations as various actors seize opportunities and (re)shape them - again without any linearity or centralization, but on the contrary with competing and entangled visions about the role of international regimes. Any new multilateral development on human rights norms thus requires the emergence of new legitimacy spaces for debate and decisions. Once this happens, actors with an interest in or specialized on the proposed issue can use this space. Now the key to this process is the active delegitimization or the loss of legitimacy of the status quo. As Przeworski underlines regarding transition to democracy, a loss of legitimacy by the existing situation is greatly facilitated by the emergence of a credible alternative.72 This underlines the importance for actors to be skilled in the art of navigating, playing and using the multilateral human rights system.73 Moreover, as legitimacy is never definitely acquired and stable for any actors, legitimization is an equally relevant approach to understanding practices of international human rights law. In particular, human rights organs can bureaucratize and institutionalize themselves but yet hardly ever render their work commonplace and routinely legitimate as both adversaries and friends will constantly seek to orient if not challenge its procedure and substance.74 Furthermore, as 72. Adam Przeworski, Some Problems in the Study of Transition to Democracy, in. TRANSITIONS FROM AUTHORITARIAN R ULE. P ROSPECTS FOR DEMOCRACY (Guillermo O’Donnell, Philippe Schmitter & Laurence Whitehead eds., 1986). 73 JAMES N. ROSENAU, DISTANT PROXIMITIES: DYNAMICS BEYOND G LOBALIZATION (Princeton University Press, 2003); see also周志杰，同註6，頁119。 74. Kathryn Sikkink, The Emergence, Evolution, and Effectiveness of the Latin Ameri-. −145−.

(34) 34 政大法學評論. 第一○九期. legitimacy conflicts are bound to polarize any collective decisionmaking and constantly threaten to paralyze it, actors constantly play strategies of politicization and depoliticization as they see fit.. B.Functional Need for Legitimacy While international human rights regimes and actors do need some stable legitimacy for the system to be able to function, states also functionally need legitimacy for multilateralism in three cases. In the first situation, states may want to use criticism of the human rights record of an enemy or an adversary. Robust multilateralism is the best way to produce such internationally public, credible third-party criticism for partisan purposes. A second type of functional need for legitimization results from some states’ endeavor to carve their diplomatic niche (out of a mix of convictions and interest) and foster their own legitimacy by supporting human rights multilateralism: If you make your international standing partly rely on support for multilateral human rights norms and institutions, legitimizing these is a must to ensure a “return on investment”. A third type of functional legitimization in favor of multilateralism proceeds from the “human rights constellation”, the set of actors specialized on and/or committed to human rights, i.e. human rights International Nongovernmental Organizations (INGOs), Intergovernmental Organizations (IGOs) secretariats, independent experts and some pillar states.75 Indeed, international efforts needs legitimacy to be able can Human Rights Network, in CONSTRUCTING D EMOCRACY: HUMAN RIGHTS, CITIZENSHIP , AND S OCIETY IN L ATIN A MERICA 61-62 (Elizabeth Jelin & Eric Hershberg eds., 1996). 75 Risse & Sikkink, supra note 60, at 28-29.. −146−.

(35) 九十八年六月. State Authority vs. International Norms. 35. work (with support, funding and minimal consensus), to be independent, autonomous, assertive and credible and, in the end, to be effective.76 These three functional needs, though proceeding from different actors and intents, are mutually reinforcing as any increased legitimacy of the system makes further efforts of legitimization more appealing. It is thus common to observe joint enterprises of legitimization. In some cases, actors have distinct but related goals (a typical case is the recurring alliance between a middle power, key international human rights INGOs and IGOs). In other situations, some actors find themselves in lasting interdependency (e.g. human rights organs and INGOs have shared goals and complementary functions and resources). The great beneficiary of this configuration is the human rights constellation whose place, autonomy and power only grow as the tests of legitimacy stay center stage. This situation has been favorable to innovations regarding the problem of torture, because change is brought about either by decisive moves on part of empowered insiders, i.e. an individual, a group or a structure with the authority and legitimacy to make such changes, or by outsiders with leverage and connections to decision-makers, or by some combination of both. On the one hand, human rights multilateralism modifies, classically established links between powers, including soft power, and resources, by requiring states to adjust and use sector-specific resources suited to legitimacy challenges. The resources basis for such con76. IGO’s autonomy is understood in the double sense of setting their own norms and of self-sustained independence for their secretariat staff, organs and experts.. −147−.

(36) 36 政大法學評論. 第一○九期. strained power is then necessarily reduced and usually very different from the basis for bilateral or unilateral power in fields other than human rights.77 Similarly, the nature of resources needed for legitimization only partly dovetails with classical cases: while economic and financial strength will certainly help states be engaged with IGOs, other resources such as expertise, especially legal expertise, in the matters at hand are at least as likely to be conducive to legitimization. Conversely, power may bring its owner some resources (e.g. funding, connections), but the latter will still be determined and constrained by multilateral obligations. Legitimacy will increase that state’s resources in human rights multilateralism but may not pay back much in terms of resources useful to power elsewhere. On the other hand, two anomalous links appear in human rights multilateralism. First of all, being powerful and exercising one’s power may well be a handicap in the quest for legitimacy. Multilateral legitimacy for states implies their submission to multilateral norms on authority, i.e. restraining, containing and channeling domestic and international power. Consequently, power in and by itself will not automatically yield positive outcomes but rather frequently constitute fertile ground for suspicion and delegitimization, whereas in soft power scenarios, legitimacy would be increased by the use of power.78 Conversely, legitimacy will probably lead to more influence, but cannot really buy power in the human rights field, because more legitimacy in the eyes of IGOs, INGOs and peers implies less use of domestic power 77 78. Risse & Ropp, supra note 7, at 260-61. KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).. −148−.

(37) 九十八年六月. State Authority vs. International Norms. 37. and international power (cooperation with multilateral control and channel led use of peer pressure).79 Contrast this phenomenon with the frequent empowerment of INGOs which are legitimate in multilateralism.. V.LEGITIMATE IMPACTS OF STATE AUTHORITY ON HUMAN RIGHTS MULTILATERALISM Considering the role of states in light of the importance of legitimacy in the multilateral practices of human rights law,80 it turns out that the bright line in the sand between democracies and other regimes, each having its distinct power, interests and resources, is not the most relevant classification to understand their respective roles in human rights multilateralism where states occupy the triple place of founders, subjects (with a monopoly on some prerogatives such as voting) and objects.81. A.Triggering Effects for Multilateral Human Rights Legal Practices As foundational subjects of the system, states are in a position to. 79 80. Risse & Sikkink, supra note 60, at 38. This paper focuses on states’ behavior within multilateralism, but the role of INGOs. and experts in this realm as well as social dynamic outside IGOs should be emphasized as a major source of changes since 1945 in international affairs. For instance, Amnesty International’s two worldwide campaigns against torture in the 1970s and 1980s left an unmistakable mark on collective deliberations and was a fertile matrix for the INGO world. For a synthesis on the history of the fight against torture and its players, see NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER I NTERNATIONAL L AW (1999). 81 Id.. −149−.

(38) 38 政大法學評論. 第一○九期. be a driving force using the leverage of legitimacy to open up space for collective debate and decision.82 This role has been decisive because once the human rights issue is placed on the agenda, its rhetorical, political and ethical weight make it difficult for other states to ignore. Whether it originated from top-level political will or domestic social pressure, this pioneering role has consistently been played by democracies, especially middle powers, and no authoritarian regimes have taken such steps in the multilateral efforts on human rights: While not all democracies engage in such behaviors, this is where democracies and their societies seem indispensable. This role is amplified by key states’ double membership in the UN and a regional IGO with human rights institutions, which enables these democracies to move issues and ideas back and forth to advance them. European and Inter-American IGOs, steered and moved by determined persons and groups, play a complementary role and, in some instances, offer a testing ground for pioneering projects such as the European visits system to protect personal rights.83 Democracies thus founded a regional IGO (the Council of Europe) with a strong mandate, strong institutions and the potential to fight violations of civil and political rights. They proposed multilateral treaties against human rights abuse and followed up with negotia-. 82 83. Risse & Sikkink, supra note 60, at 8. Chih-Chieh Chou（周志杰）, Legalization of Human Rights and Democratic Norms in International Organizations: Comparative Investigation on the European Union, Council of Europe, and the Organization of American States. Paper presented at the 20th World Congress of the International Political Science Association, Fukuoka, Japan, July 9-13, 2006.. −150−.

(39) 九十八年六月. State Authority vs. International Norms. 39. tion leadership and contribution.84 They initiated the creation of some effective multilateral mechanisms against human rights abuse (such as country-specific and thematic Special Rapporteurships), admittedly with variable intents and expectations. In the case of South Africa, multilateral pressure gradually drove the compliance of human rights by the leaders of minority rule. South Africa stands as the most prominent target of transnational human rights campaigns and international pressure in the late 20th century.85 Despite United States (US hereafter) support for South Africa until the mid1980s, UN-mandated sanctions first imposed in 1962 cost the country 2.8 percent a year throughout the 1960s to 1980s.86 When the US finally imposed sanctions in 1985, they cost South Africa an additional 0.8 percent per year. At the same time, South Africa suffered high levels of isolation throughout this period. India first challenged apartheid during the first meeting of the UN Human Rights Commission in 1946, and by the 1960s, South Africa was a pariah state routinely marginal-. 84. For instance, the position of Sweden and the Netherlands on the Convention Against. Torture, CAT, and Costa Rica and Switzerland on the Optional Protocol to the CAT, OPCAT, see Burgers and Danelius (1988), and Association for the Prevention of Torture (2004: 33-62). 85 Audie Klotz, Norms Reconstituting Interests: Global Racial Equality and U.S. 86. Sanctions against South Africa, 49 INT. ORG. 451, 478 (1995). GARY C LYDE H UFBAUER, JEFFREY J. SCHOTT & KIMBERLY A NN ELLIOTT, ECONOMIC SANCTIONS RECONSIDERED: HISTORY AND C URRENT POLICY (2nd ed. Washington: Institute for International Economics, 1990). GARY CLYDE HUFBAUER, J EFFREY J. SCHOTT & KIMBERLY ANN ELLIOTT, ECONOMIC SANCTIONS RECONSIDERED: SUPPLEMENTAL C ASE H ISTORIES (2nd ed. Washington: Institute for International Economics, 1990).. −151−.

(40) 40 政大法學評論. 第一○九期. ized from most of the world's diplomatic activity.87 From 1946 to the Soweto riots in the mid-1970s, however, conditions in South Africa made the government resistant to change. Although Western ideals of human rights and democracy circulated in South Africa, religious and political leaders justified and defended the political system by appealing to nationalism and racial superiority in ways that won the normative approval of white South Africans. The National Party, which built and championed apartheid, enjoyed widespread normative approval in the 1960s. In November 1977, the UN Security Council made the previously voluntary arms embargo mandatory. When South Africa responded in superficial ways, international actors increased the pressure again in the mid-1980s.88 Symbolic pressures included awarding the Nobel Peace Prize to anti-apartheid activist Bishop Desmond Tutu, and launching the Free South Africa Movement at the South African embassy in Washington, D.C. More concrete measures included new sanctions from the US and Europe that banned direct investment in South Africa, loans to the South African government, imports of key South African materials like coal and steel, and exports of oil and some computers. Most surprising were the decisions of commercial banks to tighten lending policies in the mid-1980s, ensuring that South Africa was “effectively cut off from international. 87. Audie Klotz, Making Sanctions Work: Comparative Lessons, in HOW S ANCTIONS WORK: LESSONS. 88. FROM. S OUTH AFRICA 264-282 (Neta C. Crawford & Audie Klotz. eds., 1999). ROBERT M. PRICE, THE APARTHEID STATE IN CRISIS: POLITICAL TRANSFORMATION IN SOUTH AFRICA, 1975-1990, at 220, 223 (1991).. −152−.

(41) 九十八年六月. State Authority vs. International Norms. 41. capital markets.”89 In response to the international pressures and the shifting attitudes among white South Africans, the Nationalist Party became increasingly concerned with the legitimacy and long-term stability of the apartheid regime. P.W. Botha became prime minister in 1978, proclaiming a “new dispensation” and “apartheid is dead.” Gaining international legitimacy was one of the most fundamental goals of Botha’s administration.90 Unfortunately, direct force and extreme repression once again took center stage soon after the Constitutional reforms were approved in 1983. Indeed, it was the effort to implement these reforms that triggered widespread and often violent domestic protests that swept South Africa from 1984-86.91 In the face of strong international pressures and in the midst of these declining security threats, the “internationalist-reformer” wing of the National Party ascended to power in early 1989 as F.W. de Klerk replaced Botha first as party leader and then as state president.92 After confirming his leadership in a September 1989 general election, de Klerk stunned the world on February 2, 1990 by announcing the unbanning of the African National Council (ANC) and other prominent opposition groups, the end of the state of emergency, the release of Nelson Mandela and other black leaders, and an invitation to negotiate a 89 90 91. Id. at 220, 236. PRICE, supra note 88, at 145, 146. David Black, The Long and Winding Road: International Norms and Domestic Po-. litical Change in South Africa, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE 92-93 (Thomas Risse, Stephen C. Ropp & Kathryn Sikkink eds., 1999). 92 PRICE, supra note 88, at 213.. −153−.

(42) 42 政大法學評論. 第一○九期. new power structure.93 By mid-1990, government-ANC talks were in full swing. With the security situation resolved and with public opinion solidly behind the reform process, de Klerk signed a democratization pact in late 1993 that ensured majority rule and extended human rights guarantees to all South Africans.. B.Halting Factors for International Norms and Multilateral Efforts However, both democratic and non-democratic states have also launched initiatives to maintain the status quo or even to force the multilateral human rights efforts to turn back while trying to avoid delegitimization by conducting their actions behind the scenes, sheltering themselves in silence and non-cooperation, masquerading by using the multilateral repertoire or challenging the legitimacy of multilateral authority and the illegitimacy of rights abuse. They have thus led concerted attacks against multilateral institutions and/or of human rights INGOs and sought to undermine, subvert or co-opt them.94 Proceduressavvy states have likewise been able to preventively stall any opening (even a purely formal one), sink an initiative by killing it from the start before any debate and before mobilization to delegitimize them could. 93 94. TIMOTHY D. SISK, DEMOCRATIZATION IN SOUTH AFRICA 81-85 (1995). For instance, the attitudes shifting from ignorance, denial and cover to admit and unofficial compensation by the Japanese government on the “comfort women” issue in World War Ⅱ justify national resistance against multilateral NGOs’ efforts under the name of legitimacy of state authority. For further discussion, see Chih-Chieh Chou（周志杰）, An Emerging Transnational Movement in Human Rights: Campaigns of Nongovernmental Organizations on “Comfort Women” Issue in East Asia, 5 J. ECON. & SOC. RESEARCH 153, 181 (2003).. −154−.