Simmons, social mobilization, and the civil rights movement

I’ve abstained from commenting on Beth Simmons’s early chapter about the history of human rights. It is not so much that, in my obviously self-interested view as a contributor to that field, her chapter is often uncritical and occasionally unsubstantiated (in its frequent repetition of the commonplace but dubious notion that the Holocaust prompted human rights law for instance). Rather, Simmons’s history of the origins of human rights doesn’t matter to her argument. Don’t get me wrong: historians like Steven Jensen are hard at work on the political origins of the human rights covenants in the 1960s and archivally rooted studies of those and later treaties are likely to be highly illuminating. But for the purposes of Simmons’s core argument about domestic compliance, the human rights treaties she is studying could have dropped from the sky at a recent date and her empirical claims about their impact through domestic politics would still stand.

In this last post, I don’t want to doubt those claims – I frankly don’t have the competence to do so. I buy Simmons’s conclusion that, under a certain set of assumptions and therefore in restricted circumstances, human rights treaties have contributed marginally and thus can contribute in the future to human betterment. As she says, she may even have underestimated the impact of human rights law (365). Instead I am interested in how Simmons theorizes the relationship between treaties and social movements, in pursuit of my worry that her very demonstration that international law makes a difference obscures how politics might allow for that difference and for more of it.

Unlike in the early part of her book, it really does matter that Simmons draws on history to lend credence to her approach, for – partly because it has been the topic of so much prior discussion – the U.S. civil rights movement is the model she uses to get her theory of domestic compliance through social mobilization going.

When it comes to domestic mobilization, Simmons claims that the prior ratification of human rights treaties potentially adds value for four distinct reasons: it precommits government to be receptive to claims based on the treaty or its norms; it may enlarge the movement base; it may provide intangible resources; and it may offer additional tools, prominently including new claims in litigation. Simmons then  goes on in her empirical chapters to infer that some combination of these hypothetical effects must obtain, supplementing statistical inference with a few narrative interludes.

Yet it is highly illuminating that in her theoretical chapter on compliance Simmons highlights the value of law to the civil rights movement in American history. The problem in doing so is not just, as she acknowledges briefly, that so many analysts of the civil rights movement have suggested – albeit controversially — that legalization added little or nothing to, or even interfered with, the civil rights movement  (133-34 and 146n). For it is also significant, as Simmons doesn’t explain, that other scholars have shown so powerfully that the U.S. civil rights movement succeeded precisely on condition of abjuring appeal to the very supranational principles whose role in domestic mobilization Simmons wants to vindicate in the present day. Just as important, historians like Carol AndersonMary DudziakNikhil Singh, and Penny von Eschen have argued in different ways that the “domestication” of the U.S. civil rights movement accounted for its short-term successes but also some of its long-term and persisting limitations. Is the most interesting feature of the U.S. example, then, that the law added something (if Simmons is right, and Gerald Rosenberg wrong, that it did)? Or should that example prompt a fascinating inquiry into what sorts of mobilization work and what sorts (if any) of rival legal strategies work best in specific circumstances and over the long term? In other words, it may be beyond doubt that, in some aggregate sense, human rights treaties “make a difference” through social mobilization that turns to them. But compared to what? Doing nothing? Or doing something else? As I read her, Simmons says that international treaties “enable and constrain” social movements but then focuses on the positive side of the ledger (144).

A yet bigger worry with Simmons’s intensive agenda to vindicate the value of international human rights law in some absolute sense is that focusing so doggedly on the value added by treaties takes the emphasis off the conditions for the prior existence of powerful social movements that might make good use of them. To put this most bluntly, it is obvious that social mobilization can do just fine – and achieve great things – without international law. In fact it is arguable that domestic movements operating purely under their own power or in solidaristic alliance with foreign compatriot movements have done more good in the world so far than those operating under the color of the additional authority provided by treaty ratification. I myself interpret the rise of international human rights politics in our own time as connected in some mysterious ways no one yet understands to the withering of the local solidarities that once powered social movements – until they so famously migrated right in U.S. history. In short, for anyone who cares about progressive change, the sociohistorical conditions under which mobilization occurs obviously need not include the availability of international human rights instruments. More important, the analytical turn to international treaties as a last-ditch source of hope that movements will have new tools if and when they coalesce distracts from addressing the (very possibly weakening) conditions in which they might do so.

None of this, again, contradicts Simmons’s analysis per se. She ultimately acknowledges that international law is no “magic bullet” (350). It does what it does. Yet these reflections may have severe consequences for the overall importance of her point that international law potentially provides modest gains. It leads her to the banal point – though usefully linked to a surprisingly conclusive attack on military intervention for the sake of human rights – that the upshot of studying these treaties is to illustrate the importance of domestic ownership (374, 378). Well, yes. If so, the focus on treaties might matter supremely if it was felt that some places or some people weren’t able to get social movements going under their own power, as African-Americans and their allies in U.S. history were able to do. But of course, Simmons should want to avoid this assumption; as my last post explained, she is properly afraid of the implication so frequently haunting international human rights that “they” need “us” to achieve the basic formal liberties we didn’t need them – or international law — to obtain.

In the end, then, Simmons’s approach could distract from figuring out how social mobilization coalesces – notably when it comes not to the civil and political liberties on which Simmons’s book largely though not exclusively focuses but to the economic and social circumstances for the enjoyment of rights. There are already many global movements, and could be more, with respect to those circumstances. If “they” need “us,” further, it might be most of all to convince our own powerful and wealthy states and publics to change their relationships to nations and movements other places in the world – and sometimes to get out of their way.


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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).