Kathryn Sikkink’s “The Hidden Face of Rights”
Kathryn Sikkink, The Hidden Face of Rights: Toward a Politics of Responsibilities (Yale University Press, 2020)
Kathryn Sikkink, Professor at the Harvard Kennedy School of Government, is one of the leading academic experts on international human rights law—the body of principles arising out of a series of post-World War II human rights treaties, conventions, and other international instruments. Recently, I reviewed her work Evidence for Hope: Making Human Rights Work in the 21st Century on my personal blog.
In that work, Sikkink took on a host of critics of the current state of international human rights law who had challenged both its legitimacy and its effectiveness. Before Evidence for Hope, she was the author of the highly acclaimed Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, where she argued forcefully for holding individual state officials, including heads of state, accountable for human rights violations.
Now, Sikkink asks us to look at human rights, and especially how we can best implement those rights, through a different lens. In her most recent work, The Hidden Face of Rights: Toward a Politics of Responsibilities, portions of which were originally delivered as lectures at Yale University’s Program in Ethics, Politics and Economics, Sikkink argues that we need to increase our focus on the duties, obligations, and responsibilities undergirding human rights. Although “duties,” “obligations,” and “responsibilities” are nearly functional equivalents, “responsibilities” is Sikkink’s preferred term. Moreover, Sikkink is concerned with what she terms “forward-looking” rather than “backward-looking” responsibilities.
Forward-looking responsibility turns largely on the development of norms, the voluntary acceptance of mutual responsibilities about appropriate behavior. It stands in contrast to backward-looking responsibilities, which are based on a “liability model” that asks who is responsible for a violation of human rights and how that person or institution can be held accountable—or responsible. Sikkink seeks to supplement rather than supplant the liability model, describing it as appropriate in some contexts but not others. Although necessary, backward-looking responsibilities “cannot address many of the complex, decentralized issues that characterize human rights today,” she contends.
For Sikkink, forward-looking responsibility is ethical and political, not legal. She is not arguing to make forward-looking responsibilities legally binding. Nor is she seeking to create new rights—only to implement existing ones more effectively. But she uses the term ‘human rights’ broadly, to include the political, civil, economic, and social rights embodied in the major post-war treaties and conventions, along with new rights, such as the right to a clean environment and to freedom from sexual assault.
The crux of Sikkink’s argument is that voluntary acceptance of norms—not fear of sanctions—is in most cases a more effective path to full implementation of human rights. Sustaining and reinforcing norms entails a pragmatic, “what-might-work” approach. This is brought about by “networked responsibilities” (one of her key terms), a collective effort in which all those connected to a given injustice—the “agents of justice,” more often private individuals than state actors—step forward to do their share. One of Sikkink’s principal objectives is to bring the theory of human rights in line with existing practice.
Sikkink notes that the activist community charged with implementation of human rights already has “robust practices of responsibility. But it does not yet have explicit norms about the responsibility of non-state actors in implementing human rights.” Rights activists are reluctant to talk about responsibilities of non-state actors out of concern that such talk might “take the pressure off the state, risk blaming the victim, underplay the structural causes of injustice, or crowd out other more collective forms of political action.” Human rights activists, Sikkink emphasizes, while avoiding recognizing responsibility explicitly, have nonetheless implicitly “assumed responsibility and worked in networks with other agents of justice to bring about change.” In this sense, responsibilities are the “hidden face of rights, present in the practices of human rights actors, but something that activists don’t talk about.”
For Sikkink, forward-looking responsibility is ethical and political, not legal. She is not arguing to make forward-looking responsibilities legally binding.
In the first third of the book, Sikkink establishes the theoretical framework to a forward-looking conception of human rights implementation. In the last two-thirds, she applies her forward-looking model to five issues that are close to her heart and home: voting, climate change, sexual assault, digital privacy, and free speech on campus. Her discussion of these issues is decidedly US-centric, based mostly on how they arise at Harvard and, to a lesser extent, on other American university campuses, with only minimal reference to what a forward-looking approach to implementation of the same rights might entail in other countries. Among the five issues, voting receives the most extensive treatment (about one-third of the book), which is as much as the other four topics combined. Several factors prompted me to question whether voting is the best example of forward-looking responsibility in operation.
Forward-Looking Responsibility as Applied to Voting
In the voting context, forward-looking responsibility means above all the acceptance of a norm that views voting as a non-negotiable responsibility of citizenship, much like serving jury duty and paying taxes. But we also have a ‘networked responsibility’ to convince others both to accept the voting norm, and to assist them in executing that right. Sikkink’s discussion zeroes in on how to increase voter turnout among Harvard students and, through focus-group sessions with such students, examines the challenges of persuading them to accept the voting norm.
Sikkink recognizes that Harvard students are far from representative of American university students, let alone of Americans generally. Although at the pinnacle of privilege in American society, Harvard students—like their peers at other universities—nonetheless under-participate in local and national elections. The difficulties they encounter in registering to vote and casting their ballots are a telling indication that the electoral system is complex for far wider swaths of the American public. But focusing on them leaves out the consideration of how to reach and persuade less privileged groups. A few of Stacey Abrams’s insights would have been useful.
Sikkink’s book, more importantly, went to press prior to the November 2020 Presidential Election, an election in which approximately 159 million Americans voted—a record turnout, constituting about two-thirds of the eligible electorate and seven whopping percentage points higher than the 2016 turnout. Yet, the election and its aftermath have given rise to unprecedented turmoil, including unsupportable claims of a “stolen” election and an uprising at the U.S. Capitol in January, fundamentally altering the national conversation over voting in the United States from what it was a year ago. Sikkink’s concerns about voter apathy no longer seem quite so central to that conversation.
Rather, more than six months after the election, a substantial minority of the American electorate still adheres to the notion of a “stolen” election, despite overwhelming evidence that the official election results were fully accurate within any reasonable margin of error. In the aftermath of the election, furthermore, state legislatures in several states have adopted or have taken under consideration measures that seem designed specifically to discourage some of America’s most vulnerable groups from voting, under the guise of preventing voter fraud—even though evidence of actual fraud in the 2020 election was scant to non-existent. Sikkink foresees this issue when she notes that state officials in some parts of the United States “do not want to expand voter turnout and even actively suppress it.” In such situations, she writes, “networked responsibility of non-state actors to change voting norms and practices is all the more important.” If Sikkink were writing today, it seems safe to say that she would elaborate upon this point at greater length.
Unlike some of the rights Sikkink discusses, however, voting to select a country’s leaders is firmly established in written law. But the responsibility side of this unquestioned right must compete with a plausible claim that in a democratic society based on freedom of choice, a right not to vote should be recognized as a legitimate exercise of that freedom— a way, for instance, of expressing one’s disenchantment with the electoral and political system or, more parochially, dissatisfaction with the candidates offered on the ballot. Many of the students in the Harvard focus group expressed the view that voting should be “situational and optional.” Sikkink emphatically rejects this argument, suggesting at one point that casting a blank ballot is the only responsible way to express such views: “if one is going to refuse to vote in protest, it must be just as hard as voting,” she writes.
By coincidence, as I was wrestling with Sikkink’s arguments against recognizing a right not to vote in June of this year—and finding myself less than fully convinced—I was following presidential elections in Iran, which witnessed its lowest voter turnout in four decades: slightly less than 50%, with another 14% casting blank ballots. Dissidents in Iran organized a campaign this year that urged abstention as the most principled way to express opposition to what the campaign leaders maintained was an intractably tyrannical regime.
The abstention campaign argued that the voting process for the election had been structured to eliminate any serious reform candidates; that the Iranian government since 1979 had an extensive track record of voter intimidation and manipulation of vote counting; and that the Iranian government uses the usually high turnout rates (85% for the 2009 presidential election; over 70% in 2013 and 2017) to affirm its own legitimacy. In short, there seemed to be little to no reason why Iranians could anticipate that the election would be “free and fair,” which may be the necessary predicate to Sikkink’s rejection of a right not to vote, a point she may wish to elaborate upon subsequently (were she writing today, Sikkink might also address the “freedom” not to wear a mask or to be vaccinated during a pandemic; I also wondered how Sikkink would react to regional French elections, which took place immediately after the Iranian election, in which an astounding two-thirds of the electorate abstained).
If Sikkink’s application of forward-looking responsibility to voting contains rough edges, her application to climate change makes for a near perfect fit. While it is obviously of utmost importance to know the underlying causes of climate change and to understand how we reached the current crisis, backward looking responsibility—seeking to hold responsible those who contributed to the crisis—has only limited utility. Without letting big fossil fuel polluters off the hook for their disproportionate contribution to the current state of affairs, backward looking responsibility “must be combined with forward-looking responsibilities,” Sikkink argues, “including the responsibilities of actors who are not directly to blame.” When it comes to climate change, we are all “agents of justice” if we want to preserve a livable planet.
Freedom From Sexual Assault
The backward-looking liability model remains critical when applied to the right to be free from sexual assault, a large umbrella category that includes all non-consensual sexual activity or contact, including but not limited to rape. Any effort to limit sexual assault must “first hold perpetrators responsible—and, where appropriate, criminally accountable,” Sikkink writes. But we also need to “think about the forward-looking responsibility of multiple agents of justice, especially how potential victims, as capable agents, can take measures to prevent future violence.”
Digital privacy, Sikkink explains, transcends the interest of individuals to limit the dissemination of their own personal information. She describes how we can inadvertently expose others to online privacy invasions. In protecting privacy online, we need to become proficient in what she terms “digital civics,” another term for the forward-looking responsibility of Internet users to help ensure both their own privacy rights and those of other users.
Free Speech Online
A separate but related aspect of digital civics is learning how to recognize and not spread disinformation, or “fake news,” thereby raising questions about the bounds of the right to free speech online. We all have an ethical and political responsibility, if not quite a legal one, to evaluate sources and to refrain from sharing (or “liking”) information that does not appear to have sound factual grounding, Sikkink argues. The extent of the bounds of free speech also arises on campus in finding a balance between the right to speak itself, and the right to protest speech that one finds offensive.
Right to Protest Offensive Speech
On university campuses today, many students feel they have an obligation to defend fellow students, and oppressed people generally, against hurtful and degrading speech. Sikkink notes that over half the students responding to one survey thought it was acceptable to shout at speakers making what they perceived to be offensive statements, while 19% said it was acceptable to use violence to prevent what is perceived to be abusive speech. These are not responsible exercises of one’s right to protest offensive speech, Sikkink responds. Violence and drowning out the speech of others are more than just “problematic from the point of view of the ethic of responsibility.” Pragmatically, these forms of protest have been demonstrated to be unlikely to generate support for the ideas espoused by those using such tactics.
Sikkink notes that over half the students responding to one survey thought it was acceptable to shout at speakers … These are not responsible exercises of one’s right to protest offensive speech, Sikkink responds.
Pragmatism thoroughly infuses Sikkink’s notion of forward-looking responsibility, as applied not only to campus speech and the other rights discussed here but, presumptively, to the full range of recognized human rights. Her pragmatism animates the question she closes the book with, literally her bottom line: in addition to—or even instead of—asking who is to blame, we should ask: “What together we can do”? As her fellow academic theorists evaluate the fresh perspective that Sikkink brings to international human rights in this compact but thought-provoking volume, they will want to weigh in on the pertinence of this question to our understanding of those rights.
Photo Credits: “Harvard University – Eliot House” by roger4336. Via Creative Commons (CC BY-SA 2.0).