Reciprocity and Human Rights

Unlike “classical” international law, international human rights law does not appear to operate on the basis of reciprocity. Rather, it stands for an “objective legal regime” established in the collective interest, aimed at protecting human dignity. In other words, the breach of a human rights treaty by a State party does not empower other parties to default on their obligations thereunder. These regimes and obligations, codified in the law of treaties and the law of international State responsibility, have the distinct feature of rejecting reciprocity as the basis of obligation, shifting their focus towards the international public policy nature of collective interests instead. This normative foundation has long been generating problems for human rights enforcement, and has created confusion between the aspirational and normative elements. The weakness of their enforcement mechanisms, leads to their promotion through “conditionalities” to achieve political and economic goals. Examples of foreign policy areas endorsing this idea include international development, monetary and financial cooperation, peace agreements, and regional integration (including the European Union). In many cases, human rights standards are imposed through conditionalities as a result of unequal power relations, thus placing long-term human rights compliance at risk. This chapter seeks to determine whether and to what extent the “special nature” of human rights obligations necessarily implies the disappearance, or simply the overcoming, of any form of reciprocity. Finally, a set of concluding observations will follow, in line with the book’s key objectives contemplating whether reciprocity has been supplanted by common interests. This, in turn, serves as a basis for answering the basic question concerning the (meta-)legal nature of reciprocity in human rights.