“Human Rights Protection, Democratic Deliberation”
55
basically captured within the two dimensions of (1) universalism in
theory and (2) relativism in practice. Donnelly (2003: 78, 97; 2006:
612) observes: “modern markets and states” created the “social
structure, not culture,” that engendered the theory and practices of
international human rights. Yet Donnelly’s social-structure
explanation allows for “legitimate” variations in implementations.
Now why we should understand “universal” human rights theory
and practices in this fashion is: “the essential insight of human
rights is that the worlds we make for ourselves, intentionally and
unintentionally, must conform to relatively universal requirements
that [1] rest on
our humanity
and [2] seek to guarantee each person
equal concern and respect from
the state
” (Donnelly, 2003: 123;
emphasis added).
If one comes to understand human rights in this way, then the
state will have a powerful argument for why the compliance with
and enforcement of international human rights protections ought to
be matters best left to the state, and its police and security apparatus.
That is, one implication of Donnelly’s two-dimensional account is a
state-centric view that makes the state the primary, if not exclusive,
judge and enforcer of what falls under the purview of human rights
considerations.
17
Given the history of states, and the conflicts
among states, we know that how states interpret and implement
international norms and standards
18
varies from context to
context
—
driven to varying degrees by what is in the state’s best
interest. Taken to the logical conclusion, the implication is that a
state-led approach like Donnelly’s breaks down in failed states and
in a stateless environment. For those in need of the protections,
notably, victims of VAW and gender-based assaults in conflict zones
17
As a matter of division of labor, states have the primary role of enforcing human
rights laws, while courts including the European Court of Human Rights are
tasked with interpreting and determining the breadth and content of human
rights laws.
18
For the present purposes, the most relevant international standard is the due
diligence standard. In section V, further below, I shall discuss it.
