People Power Movements and International Human Rights: Creating a Legal Framework

ICNC MONOGRAPH SERIES

SERIES EDITOR: Maciej Bartkowski

VOLUME EDITOR: Amber French

EDITOR OF REVISED EDITION: Julia Constantine

Other volumes in this series:

Making or Breaking Nonviolent Discipline in Civil Resistance Movements, Jonathan Pinckney (2016) The Power of Staying Put: Nonviolent Resistance against Armed Groups in Colombia, Juan Masullo (2015)

The Tibetan Nonviolent Struggle: A Strategic and Historical Analysis, Tenzin Dorjee (2015)

Published by ICNC Press

International Center on Nonviolent Conflict

1775 Pennsylvania Ave. NW, Suite 1200

Washington, D.C. 20006 USA

© 2017 International Center on Nonviolent Conflict,

Elizabeth A. Wilson

All rights reserved.

Revised Edition, July 2019

ISBN: 978-1-943271-10-8

ISBN: 978-1-943271-64-1 (e-book)

Cover photos: June 2015, Plaza de la Constitucion (Constitution Plaza), Guatemala City, Guatemala. Findings of the CICIG, the post-war anti-impunity international council, triggered mass mobilization against government corruption and impunity, leading to the resignation and arrest of President Otto Perez and Vice President Roxana Baldetti. Photos courtesy of Tomas Ayuso.

Peer Review: This ICNC monograph underwent blind peer review to be considered for publication. Scholarly experts in the field of civil resistance and related disciplines, as well as practitioners of nonviolent actions, serve as independent reviewers of the ICNC monograph manuscripts.

Publication Disclaimer: The designations used and material presented in this publication do not indicate the expression of any opinion whatsoever on the part of ICNC. The author holds responsibility for the selection and presentation of facts contained in this work, as well as for any and all opinions expressed therein, which are not necessarily those of ICNC and do not commit the organization in any way.

Summary

International human rights came into existence bottom-up, from the efforts of ordinary people to ally with each other in solidarity and demand their rights through civil resistance campaigns in support of democracy, an end to slavery and child labor, women’s rights, labor rights, and tenant rights, among other rights. Yet international law recognizes only states as the ultimate source of law. This monograph develops a novel, people-powered or "demos-centric" approach to international human rights law that acknowledges the role in lawmaking of average human beings, seeing them as both the source of rights and the most effective means of overcoming the central weakness of international law—namely, its inability to ensure that states and governments comply with the human rights obligations they supposedly undertake. Taking account of nonviolent movements and their impact on the formation and implementation of international human rights law recognizes the human agency of the supposed beneficiaries of human rights law: common people.¹

The monograph develops this approach using the controversial third source of law identified in Article 38 of the Statute of the International Court of Justice, namely, general principles. As a source of law, general principles are controversial because of their theological, natural law overtones. This monograph uses nonviolent civil resistance as a means of objectifying natural law and making it usable for a secular, inclusive and multicultural international legal system. Instead of an absolute term—something that exists eternally, independent of the mind of human beings—we can see natural law as a relative term that reflects a human, creative envisioning of an alternative legal order that is not yet reflected in positive legal codes but is being created intersubjectively through the collective work of human beings engaged in nonviolent civil resistance.

The analytical framework developed in this monograph identifies four general principles that structure the human rights project: nonexploitation, nondiscrimination, nonrepression and nonviolence. These general principles crosscut four dimensions of law (international and domestic law, positive and natural law) and comprise a human rights ethos. Using a typology derived from these four principles, nonviolent civil resistance movements may be critically examined for how fully they manifest this human rights ethos.

The monograph thus creates an interdisciplinary research agenda for future collaboration between legal scholars and social scientists while also making a contribution to the practice of civil resistance. Scholars of civil resistance studies can be attentive to evidence that the nonviolent movements they study are manifesting a human rights ethos. Legal scholars can evaluate this evidence and incorporate it as they develop and strengthen general principles of human rights law, in order to ensure conceptual consistency across the aforementioned four dimensions of law. Doing so will enable them to recognize the potential of nonviolent civil resistance movements to aid in the internalization of international law into domestic legal systems. Finally, practitioners of civil resistance, although primarily using extra-legal means, can become more strategic in their reliance on human rights instruments and treaties as well as general principles in waging more effective nonviolent struggles with better chances to uphold and broaden human rights norms and successfully redress injustices, including in repressive regimes.

Acknowledgments

Chosen through a blind, peer-reviewed competition, portions of this monograph were presented at the American Society of International Law's mid-year Research Forum in 2015 and a full draft was presented there in 2016. I am particularly grateful for detailed commentary from 2016 panel moderator Harlan Cohen. During the publication process, the monograph benefited greatly from feedback from editor Maciej Bartkowski, peer reviewer Mary Elizabeth King, and from an anonymous peer reviewer. The monograph was launched at the Atlantic Council in Washington, DC, in January 2018. I'd like to thank Maria J. Stephan and Sean Murphy for their insightful commentary and Mathew Burrows for his support. Outstanding research assistance was provided by Yisel Valdes and Alyssa Conn. Finally, thanks to Peter Ackerman for his generous support.

Table of Contents

Summary

Introduction

The Analytical Framework Derived: Four Dimensions and Four Principles

The Analytical Framework Applied

Addressing a Potential Criticism

Part One | Theorizing People Power in International Law: General Principles of Human Rights

Ch. I. People Power and Human Rights: Review and Critique of the Relevant Literature

The Problem of a Generally Applicable Positive Law of International Human Rights

Human Rights, Natural Law, and the Law of Nations

Modernizing Customary International Law

The Trouble with Modern Custom

The Trouble with Traditional Custom

Takeaway

Theories of Non-State-Centric Customary Law

New Haven School

Civil Society

Beliefs and Expectations

Takeaway

General Principles

Takeaway

Ch. II. Analytical Framework

First Premise: Human Rights Law is a Hybrid of Int'l and Domestic Positive Law

Second Premise: Human Rights Law is a Hybrid of Natural and Positive Law

General Principles of Human Rights

The Ethos of Human Rights

Nondiscrimination

Nonrepression

Nonexploitation

Nonviolence

Synthesis

Part Two | Applying General Principles of Human Rights to People Power Movements

Ch. III. Positive Human Rights Law Protecting Civil Resistance Movements and Participants

Individual Rights Relevant to Nonviolent Civil Resistance

The Right of Peaceful Protest

The Joint Report Recommendations on Peaceful Assemblies

From Peaceful Protest to People Power

Using Human Rights Mechanisms

Precautionary Measures

Human Rights Committee: Belarus

Amparo Actions: Guatemala

Hong Kong

Risk of Backlash

Ch. IV. Realizing the Positive Law of Human Rights

Appeal to Treaties and Treaty Bodies

The Umbrella Movement

Actions Organized Around Human Rights Legal Frameworks

China

Egypt

Pressuring States to Enforce Domestic Law Reflecting, or Implemented to Fulfill, International Human Rights Obligations

From Positive Law to Natural Law

The Helsinki Effect

Ch. V. Realizing the Natural Law of Human Rights

Evidence of Human Rights General Principles: Toward a Typology

Statements by Movement Participants and Leaders

Movement Education

Public Opinion Survey Research

Signs, Slogans, Songs and Poetry

Legal and Institutional Outcomes

Mixed Motives and Trojan Horses: Ambiguous or Countervailing Evidence

Expressions of Patriotism

Insults and Threats of Violence

Ch. VI. Making International Law Human Rights Law

Prosecutions and Transitional Justice

Takeaway

Right to be Free from Corruption

The Right to be Free from Corruption as a Human Right

Augmenting Natural Law with General Principles

Takeaway

Right to Democratic Self-Determination

Takeaway

In Conclusion: Takeaways of the Monograph Findings for Various Constituents

What is in the Monograph for Legal and Other Scholars

What is in the Monograph for Civil Resisters

What is in the Monograph for International and Local Civil Society Organizations and their Representatives

What is in the Monograph for the International Community

Glossary of Terms

Appendix: A Brief Introduction to the Positive Law of Human Rights

What International Law is

International Agreements

International Custom or Customary Law

General Principles of Law

Subjects of International Law

International Human Rights Law

Instruments of International Human Rights

Enforcement of International Human Rights

LIST OF ACRONYMS

Introduction

The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya; Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee, the cry is always the same — We want to be free. ²

What do you want to tell Assad? I am a human being. I am free. I want justice.³

This monograph creates a framework to situate nonviolent civil resistance or people power movements in the context of international human rights law. In so doing, it builds a bridge between two academic disciplines that currently stand as worlds apart, with little cross-over or cross-fertilization: human rights law and nonviolent civil resistance studies. Often confused with passive resistance or pacifism, nonviolent civil resistance is a civilian-based method used to wage conflict through social, psychological, economic, and political means without the threat or use of force. It includes acts of omission, acts of commission, or a combination of both. Most practitioners of civil resistance see themselves as operating outside the law. At the same time, international human rights law takes little account of civil resistance movements, which are without formal legal status, though certain human rights norms apply to them as well as to individuals.

The international legal community is, however, beginning to take notice of civil resistance, at least to the extent of defining the scope of a right to peaceful protest. This monograph will focus on human rights law as the part of international law most relevant to nonviolent movements, but more general aspects of international law are implicated as well.

International human rights jurists and scholars have reason to give nonviolent civil resistance increased attention. Civil resistance movements are occurring with increasing frequency all over the world. A study by the Carnegie Endowment for International Peace finds that major citizen protests are multiplying,⁶ many of them part of coordinated civil resistance campaigns. After an earlier phase of increased activity in the late 1980s and early 1990s ended, the pace of such protests picked up again in 2005 and have reached a new peak in the past five years.⁷ Since 2010, more than 60 countries have experienced major protests. Just in 2015, significant protests took place in Armenia, Azerbaijan, Bosnia, Brazil, Burundi, the Democratic Republic of Congo, Guatemala, Iraq, Japan, Lebanon, Macedonia, Malaysia, Moldova, and Venezuela. The list of countries hit by major protests since 2010 is remarkably long and diverse.⁸ An idea of the explosive growth of civil resistance movements is illustrated by the following chart:

Source: Erica Chenoweth and Maria J. Stephan, How the World is Proving Martin Luther King Right about Nonviolence, Washington Post, January 18, 2016. https://www.washingtonpost.com/news/monkey-cage/wp/2016/01/18/how-the-world-is-proving-mlk-right-about-nonviolence/

In fact, this graph provides at best a partial picture because it only shows large-scale civil resistance movements, where the goals are revolutionary or maximalist: to remove the incumbent national leadership from power or to create territorial independence through secession or expulsion of a foreign military occupation or colonial power.⁹ The wave of global protest seen since 2005 has been compared to a similar wave occurring in the 1980s and 1990s, except that in contrast to earlier waves, today’s protests are occurring in every region of the world and in countries with every type of governmental regime.¹⁰ It has been said that nonviolent resistance campaigns have become the modal category of contentious action worldwide.¹¹

Not only are nonviolent movements becoming more frequent, they have over time demonstrated their ability to have potent effects on international relations worldwide, altering the geopolitical order in ways long considered the prerogative of states. In Central and Eastern Europe, nonviolent movements helped to bring about the fall of the Soviet Union. Nonviolent civil resistance helped many nations win independence or end colonialism (United States, Egypt, India, Ghana, Malawi, and East Timor, to name a few).¹² The Cedar Revolution drove Syrian forces out of Lebanon in 2005.

Civil resistance movements have also changed the nature of the international community and, by extension, international law through their ability to affect major political changes in the internal governance of member states. Throughout history, people power movements have successfully and tangibly affected the specific nature and type of a state’s government, either forcing political reforms, reshaping political institutions or transforming entire political systems. In many other countries besides the ones mentioned above, military juntas and other dictatorships have been overthrown, altering the balance between democratic and non-democratic states in the international order.

Though, technically, under international law, the nature of a state’s government is a purely domestic matter; a state can only make international law through the actions (or omissions) of its government. Thus, as a practical matter, it makes a difference whether a state is democratic or undemocratic, welfarist or not, isolationist or interventionist, as its actions affects the formation of future conventional and customary international law.

Research into nonviolent civil resistance challenges the conventional wisdom that only violence works. Quantitative analysis by Erica Chenoweth and Maria J. Stephan compared the effectiveness of 323 violent and nonviolent campaigns occurring between 1900 and 2006 and reached the startling conclusion that nonviolent campaigns achieved their objectives at over twice the rate of violent campaigns (53% of the time for nonviolent campaigns versus 26% for violent campaigns).¹³ Chenoweth and Stephan conclude that this greater rate of success is owing to the greater ability of nonviolent movements to attract broad participation.¹⁴ Because the barriers to participation are lower, nonviolent movements are typically much more inclusive than violent movements, including more women, elderly people, and youths.¹⁵ While some may erroneously claim that nonviolent resistance only works against opponents unwilling to use harsh repression, in fact [t]he vast majority of nonviolent campaigns have emerged in authoritarian regimes... where even peaceful opposition against the government may have fatal consequences.¹⁶

Given the increasing frequency and potency of nonviolent civil resistance worldwide, it is important to clarify its place in international law. As nonviolent campaigns have grown more frequent, so too has repressive government response. The United Nations Human Rights Council (UNHRC) has expressed concern in various resolutions¹⁷ about the increasing use of violent attacks against peaceful protesters around the world, as well as the increasing tendency of states to criminalize protest activity and prosecute protesters, and it is taking steps to clarify the relevant law. We now appear to have entered a phase of retrenchment where democratic gains that once seemed unstoppable are now being turned back. Support for nonviolent resistance may be crucial to pushing back against this turning tide.

While the international law that applies to civil resistance movements is being clarified, larger questions of how such movements relate to international human rights law have not been deeply addressed. This monograph creates a space for civil resistance movements in international law by identifying grassroots and bottom-up mechanisms for shaping and making international norms. In its essence, this monograph proposes a theory of nonviolent civil resistance in international law, showing how it can be developed and empirically understood as both a subject and a maker of international law.

The analysis undertaken in this monograph requires a rethinking of fundamental aspects of international human rights law, and international law more generally. Traditionally, international law does not accord lawmaking powers to individuals or other non-state actors.¹⁸ Individuals have rights and some duties under international law, but they can only indirectly affect lawmaking (e.g., by influencing the diplomatic negotiations over international multilateral treaties) rather than be the originators of law themselves.¹⁹ Similarly, as Balakrishnan Rajagopal notes, Modern international law does not ordinarily concede mass movements and local struggles as makers of legal change.²⁰ To the extent that international law takes account of social movements, it is only in the context of self-determination and state formation, through the doctrine of effective control. This doctrine holds that whichever government has effective control of a state’s territory is recognized as a legitimate authority in the international system. Thus, even in this context, as Rajagopal further notes, "international