Ideological (Mis)Use of Human Rights - David Chandler

122 D. CHANDLER
of the ruler or government—to justify intervention in
the cause of enhancing the standards of human development
or human security (Duffi eld, 2007). Graham
Harrison’s work on the ‘governance state’ has highlighted
how sovereign institutions of government have
become transmission belts for external governance
(Harrison, 2004; see also Chandler, 2006). On the basis
of human rights frameworks, the claims of sovereign
states to legal equality have been weakened, as they
have been judged to oft en be less capable of ensuring
that human rights are protected than alternative human
rights-based frameworks of international regulation
and intervention.
On the basis of the undermining of claims of sovereignty,
it is increasingly argued that international
law is becoming ‘domesticated’, i.e. that it is becoming
more like domestic law, enshrining the individual as
its legal subject. It is oft en suggested that the prioritizing
of individual human rights above the rights of
state sovereignty can be understood as the creation of
a new international moral legal order, highlighted in
the conviction of state leaders for war crimes through
the establishment of ad hoc international tribunals
for former Yugoslavia and Rwanda, the prosecution
of Chilean dictator Augustus Pinochet, the establishment
of the International Criminal Court (ICC), and
the development of ideas of universal jurisdiction. For
human rights advocates, this new international order
is one that is capable of institutionalizing the legal and
political equality of individuals in place of the UN
Charter framework of the equality of sovereign states.
It is in the area of international law, therefore, that the
problematic fact that the individual subject of human
rights is not a legally constituted subject becomes clearly
highlighted. Rather than extending international law
on the basis of reconstituting the formal nature of the
international sphere, international law is being transformed
into a ‘moral–legal order’, where the spheres
of ethics and of law are becoming blurred (Douzinas,
2007, p. 148). Th e sphere of law is formally one of
equality, where under equal circumstances the punishment
is the same. However, the rise of human rights
frameworks has introduced an ethical component into
international law that, according to Costas Douzinas,
‘reconstitutes the structure, subjects and core values of
the international system’ (Douzinas, 2007, p. 183).
Th is change refl ects and institutionalizes the shift ing
nature of power relations in the international sphere
in the aft ermath of the end of the Cold War. During
the Cold War, there was a balance of power between
the US and the Soviet Union. Although the sides may
not have been exactly equal, the key point is that minor
disputes or confl icts risked escalating into a nuclear
superpower confrontation. For this reason, smaller
states found that their sovereignty and independence
were safeguarded, not so much because of the letter of
international law, but because the maintenance of the
status quo and restriction on the use of force to challenge
sovereign borders was seen to be vital for world
peace and international order. Weak states maintained
their sovereignty against more powerful external rivals
because of the constitution of the international order
(see Jackson, 1990). With the end of this balance of
power, a new more hegemonic and ‘unipolar’ world
order came into existence, which has been refl ected in
the renegotiation and overcoming of Cold War formal
and informal limits to external intervention.
Th e human rights framework has facilitated and
smoothed the transition away from the formally constituted
international order of the Cold War. Th e ethical
challenge of human rights has helped to legitimize the
downgrading of the formal legal subjects of the previous
order, equal sovereign states, and in their place
sets up the more fl exible framework based upon the
claims of non-constituted legal subjects. In the 1990s
the contradictions between the two approaches to
framing international order seemed transparent in the
debate between the formal ‘right of sovereignty’ and the
emerging ‘right of intervention’ on behalf of universal
human rights claims. Th is polarization was highlighted
in relation to the NATO war over Kosovo in 1999,
where human rights were held to trump sovereignty.
Th e problem was that, for many, it was clear that the
agency empowered by human rights claims was not
Kosovo victims as much as NATO powers who claimed
the right of intervention without UN Security Council
permission.
Following Kosovo, the UN established an independent
commission, the International Commission on
Intervention and State Sovereignty, which, with some
success, attempted to overcome the problem of clashing
rights. In its report ‘Th e Responsibility to Protect’
(ICISS, 2001), the Commission suggested reframing
the meaning of sovereignty to include the respect for
human rights, enabling external intervention to be presented
as supporting or enhancing sovereignty, rather
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