Simmons and self-emancipation

Domestic politics, then. This interim post explores how Beth Simmons thinks the interface between international treaties and domestic forces works. When she turns to the domestic forum, Simmons lays out a tripartite structure for how domestic actors can make use of the new tool of international treaties – at any rate, more than they could make of the hazy moral norms of natural law, or their clarification in written form in the Universal Declaration of Human Rights of 1948.

For Simmons, the political relevance of international treaties depends on the fact that where states are unified for the purposes of their external interstate relations, they are usually sites of at least mildly divisive conflict in their internal politics. And so treaties provide tools for domestic constituencies in competition with each other. First, Simmons says, treaties empower executives relative to legislatures, on the premise that the former normally have more power over the formulation, ratification, and enforcement of treaties than they do over ordinary domestic law. Second, treaties allow for litigation, at least where treaties become part of domestic law, and where independent judges are prepared to enforce their provisions. Finally, treaties offer a supplemental tool for social mobilization on the ground. The second and third categories clearly work together for, as Simmons points out, litigation is not simply an attempt to vindicate rights in specific cases; sometimes, it is also a political device to raise consciousness and enhance the power of social movements.

Simmons runs into trouble, however, when she theorizes how international treaties interact with local meanings – including pre-existing local ideologies and causes. And it is interesting to see how.

Obviously it can’t be the case that groups and individuals formulate their demands in terms precisely matching those of international treaties they had no part in writing. Elsewhere in her book, in fact, Simmons once again shows herself a wholly honest observer, willing to acknowledge forthrightly that those who work on international human rights, no matter where they are from, have to be trained to do so outside their own locales. Commenting on the Human Rights Committee, for instance, she observes that most of its members at the relevant time were products of North Atlantic universities, so that “it can reasonably claimed that this committee – and arguably the oversight committees associated with other multilateral human rights agreements – is the torchbearer for Western rights notions and a conduit for Western values globally” (370).

But the same can’t be true of the domestic uses of international norms her book is about. Simmons is most worried about a certain neo-colonialist critique of human rights, and her view of treaties as enabling local movements in fact is intended to allow her a very strong response to that critique. Opposing Makau Mutua’s famous theory of the international human rights movement as a system of Western saviors swooping in for the succor of savage victims, Simmons is indignant. “Treaty commitments,” she insists in response, “are directly available to groups and individuals whom I view as active agents as part of a political strategy of mobilizing to formulate and demand their own liberation” (7, italics in original).

Heady stuff. Active agents. Their own liberation.

You might analyze Simmons’s approach as a kind of liberal third-worldism. In the old days, Marxists assumed a perfect match between the ideas and interests their theory attributed to humanity and the third-world movements that were seen as the likely agents of the resistance to capitalist and imperialist oppression. It was therefore not an interesting question whether Marxism might be a Western theory foisted upon local populations. Rather, the assumption was that the ultimate identity of human needs and universal character of the desire for human emancipation across the world guaranteed the coincidence of Marxist theory and indigenous rebellion. Simmons clearly has a similar view, only now it is universal human rights not Marxism that is viewed as the tool of universal emancipation whose role is simply to allow local populations to help themselves. Though it comes from abroad and above, it already matches their interests. Is this what she really believes?

Before investigating this question, let’s add that Simmons clearly doesn’t want the recourse to the human rights norms in treaty law to be a matter of elites alone – as her first two mechanisms of elite politicians and lawyers might suggest. It is important that the liberation that international law affords through domestic politics is not simply self-liberation but also popular in character. In defense of the supposition that it could be, Simmons writes as follows (again in an entirely italicized sentence): “Rights treaties affect the welfare of individuals. If there is any issue area in which socialization at the non-elite level is important, this should be it” (139). Offhand, one might wonder which facts fit the supposition of mass interest in international human rights norms. After all, other universalisms went global, and penetrated into exotic global locales, before human rights treaties became popular, including Christianity, capitalism, nationalism, and socialism — and it is pretty obvious that all did better in reaching non-elite actors and sometimes inspiring them. The point is comparative in our era too: students of Pentecostalism have shown that it has boomed massively amongst “the wretched of the earth” in the same era as the relative ascendancy of international human rights norms, whose inroads into grassroots moral cultures have in fact been relatively minor so far.

Of course, Simmons might respond that her claim is that international human rights treaties have been relevant to popular self-emancipation at all. But in Simmons’s compliance chapter, it turns out that self-emancipation (however popular) isn’t all there is to the instrumentalization of treaty law by activist movements. To avoid the critique of human rights imperialism, local movements making use of international treaties in domestic politics have to be self-emancipating in some fundamental sense. She is offering, she says, “a bottom-up account of treaty effects” (138). Yet given the rebarbative character of treaties and the high degree of legal literacy required for their use – for unlike Marxists, international lawyers have so far come up with no anthems, slogans, or catchphrases – intermediaries must play a crucial role in making self-emancipation possible. To begin with, “potential litigants must be aware – or made aware – of their rights under international law” (132). And activist legal advisers typically matter, Simmons points out, especially when litigation strategies drawing on the authority of treaty norms come into play (135).

Especially given the almost necessary role of externally literate elites in mass self-emancipation, it is pretty unclear how much to believe in the exact match between the international treaty norm and the framework of local and non-elite grievances. Often Simmons speaks more cautiously of clarity a treaty norm might provide to otherwise inchoate local desires, and there is probably something to that argument. But cutting across and running athwart her desire to refute the neo-colonialist critique, Simmons also wants to be a constructivist, showing how international treaty law transforms local identities and interests more than it simply serves as a tool for pre-existing grievances.  As she puts it at one point: “Some citizens may not have thought of a particular practice in rights terms at all” (141). Her brief against the realism she respects much more in international affairs is that “moral/legal talk cannot be assumed to be costless, for it risks changing the values, ideas, and interests of potential beneficiaries” (143). Simmons explicitly insists that this view of “treaty effects” goes beyond the informational or enlightening role of international law and intermediaries in bringing its good news to specific places. It contributes “ideas” and “conceptual frames” that “animate” (143-44).

So which is it? Is the picture one of self-emancipation based on already local values and identities thanks to a new device (thus avoiding the neocolonialist claim of external imposition) or one of reshaped values and identities thanks to a new framework (thus undercutting the realist view of eternal interests)? Are international treaties a source of tools or transformation?

In passing Simmons relies on anthropologist Sally Engle Merry’s work for the proposition that “transnational programs and ideas are translated into local cultural terms by [non-local] agents, but … ‘retain their fundamental grounding in transnational human rights concepts of autonomy, individualism, and equality’” (142). If this story is right, it demonstrates “the possibility of converting cultural resistance” to what seem like external norms brought by outside actors “into a rights framework potentially pursuable in courts” (132). Of course, the story is not right: no translation is perfect, and if this approach were to work it would have to assume an implausible one-to-one adequacy of translation – as if different languages were simply vessels for meanings independent of and transferable among them.

But even were adequate translation possible, it would make for a theoretically untenable picture. For it would mean – again, much as Marxists once assumed – an identity of interests across humanity merely expressed in a post-Babel confusion of tongues. In rebuilding the tower, international human rights law allows people to understand that they already share in its values – no matter how alien the latter may seem at first. Much as in her realist bent when it comes to the international system, Simmons would have to disclaim her constructivist feints at the domestic level, for ultimately humans cannot help but share the same needs. They do not need new ideas.

To be clear, I myself have no stake in saving local meanings from the imperialist influence of “Western values.” If it was ever worth doing so, it is too late. If there is values convergence in the world, it is because the homogenization and interpenetration of values brought about by history started long ago. By the late date that international human rights treaties proliferated, there were no pre-contact tribes left in the world, and everywhere in the world was already subject to prior Western values, notably thanks to colonial rule. That does not mean, however, that ideological competition is over, let alone that everyone has the same fundamental needs everywhere.

The fact of the comparative frailty of international human rights norms to serve as tools for self-liberation matters because there are presumably alternative tools, and in fact were long before international human rights movements began their work. Thus, my worry is that Simmons’s account of the emancipatory force of universal values brought from abroad in international treaties but perfectly matching local values takes the focus off the still raging competition amongst alternative belief systems and practical movements of possible use to humanity. Though her official point is to show simply that international human rights treaties might make a difference, her framework ends up inhibiting the question whether other things might make more of one.


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About Samuel Moyn

Samuel Moyn is JHenry R. Luce Professor of Jurisprudence at Yale Law School and professor of history at Yale University. He has written several books in his fields of European intellectual history and human rights history, including The Last Utopia: Human Rights in History (Harvard, 2010), and edited or coedited a number of others. His most recent books are Christian Human Rights (Penn, 2015), based on Mellon Distinguished Lectures at the University of Pennsylvania in fall 2014, and Not Enough: Human Rights in an Unequal World (Harvard, 2018).