Human Rights Backsliding

In an important and provocative new article, Human Rights Backsliding, 102 Cal. L. Rev. 603 (2014), Andrew T. Guzman and Katerina Linos take a fresh look at the collective dynamics at play worldwide when one or more countries ascribe to human rights norms.  According to their abstract: 

“Human rights advocates and international lawyers view international agreements and other   international norms as important tools to improve human rights around the world. This Article explains that, contrary to widely held beliefs, international human rights norms are not a one   –  way street. Norms capable of generating improved behavior in poorly performing states sometimes also exert a downward pull on high-performing states. This downward pull leads to what we term “human rights backsliding”–a tendency for high-performing states to weaken their domestic human rights regimes relative to prior behavior or relative to what they would otherwise have done.

The theory of backsliding is a novel one, so we introduce it with several real-world examples. In   order to describe the theory, its assumptions, and its consequences as explicitly as possible, we   also provide a formal model of backsliding. We then explain how an understanding of human   rights backsliding helps explain state behavior that is otherwise puzzling. Finally, we explore some of the implications of backsliding for the design of international agreements, and we consider strategies for advocates seeking to advance human rights internationally.”

Among the examples offered by the authors, alongside those from Sweden and the United Kingdom, is the treatment of same-sex marriage in the United States. Defining backsliding to include efforts to use international norms to limit or forestall rights, the authors observe that Supreme Court Justice Alito “was the only Justice to cite to foreign practice in both Hollingsworth and Windsor, and he did so with the purpose of countering the Supreme Court’s tentative support of same-sex equality.” Justice Alito cited, for example, the fact that no nation recognized same-sex marriage until the Netherlands in 2000.  Justice Alito’s dissent invoked the relatively low standards in other nations — standards that the authors claim, made it harder for same-sex marriage proponents to advocate for same-sex marriage rights. 

At the conclusion of their article, the Guzman and Linos write:

“It is not our purpose to undermine any ongoing human rights efforts, and we do not believe this Article does so. We believe, rather, that an understanding of backsliding allows both advocates and policy makers to think more clearly about how human rights norms affect the outcome that really matters: the way in which humans are treated.”

They promise future work, using the rigorous model that they develop, to assist advocates to work more effectively in a world where human rights backsliding by some is a predictiable outcome of human rights successes for others.