“The human rights 
policy of the United States 
is very complex”

Professor Matthias Koenig on North American.

Professor Koenig, in 1953 the European Convention on Human Rights came into force, and in 1978 there followed the American Convention on Human Rights. What are the essential differences?

The American Convention on Human Rights was adopted very late, and it was above all ratified very haltingly – it still hasn’t been ratified by the United States and Canada. The initial situation in post-war Western Europe was very different; here the European Convention on Human Rights was seen as an instrument to promote a normative integration of Western Europe along with its economic integration and to stabilize the post-totalitarian democracies in Germany and Italy. The Convention has de­veloped into the most important tool of regional human rights protection in general. The decisive factor has been that the European Convention on Human Rights has an effective supervisory body in the European Court of Human Rights (ECHR) in Strasbourg. While the American Human Rights Convention still allows for a two stage process, the ECHR has been a permanent court since the 1990s to which individuals can directly address their complaints after exhausting national legal processes. In response to the exponentially increased number of complaints, the ECHR has more and more moved towards a systematic administration of justice, which has been noted worldwide, even by the United States.

What characterizes the human rights policy of the United States?

The human rights policy of the United States is very complex and contradictory. In the mid-twentieth century American politicians and especially American NGOs took a decisive part in putting the protection of 
human rights on the agenda of international organizations. The American government, however, has long regarded multilateral human rights policy with scepticism. An important piece of background information here is that the signing of a binding international human rights convention in the 1950s would have overridden the then still pre­vailing legal discrimination against the Af­rican-American population. As a consequence of complicated negotiations about the so-called Bricker Amendment, President Eisenhower had to declare that the White House would not submit a human rights convention to the Senate for ratification in the foreseeable future. Accordingly, the United States hasn’t ratified the most important human rights conventions to this day. The ratification of a treaty, however, says nothing as such about actual human rights practices; repressive states in particular are known to ratify such treaties often very quickly so as to enhance their legitimacy in the eyes of the international community. The bilateral human rights policy of the United States is therefore all the more important. It was particularly stepped up in the 1970s during the presidency of Jimmy Carter – for instance, in the context of development aid and accelerated democrat­ization, with special emphasis on primarily civil and political rights.

How is the role of Canada to be assessed?

Alone from the point of view of political power, Canada acts from a completely different position. Canada also has different legal policy constellations from those of the United States. It is well known that the United States has a strong constitutional tradition, which has often been a model for independent liberal democracies. Canada, by contrast, stands in the “common law” tradition of the British Empire and established positive fundamental rights only late, namely in the context of the global 
upsurge of human rights and constitutionalism in the twentieth century. With the adoption of the Charter of Rights and Freedoms in 1982, Canada was able to distinguish itself as a global exemplar of modern constitutionalism. The areas of immigration policy, citizenship and liberal multiculturalism also illustrate this appeal. On the other hand, even in Canada global human rights movements reach their political limits, as may be seen in the struggle for the rights of indigenous peoples within the framework of the United Nations.

How should we understand the extra­ordinary importance given freedom of religion in the United States?

An oft-cited historical reference is the 
famous theory of Georg Jellinek, according to which the idea of a constitutional codi­fication of the individual’s fundamental rights vis-à-vis the state stems from the struggle for recognition of radical Protest­ant minorities in the British colonies. It’s no coincidence that religious freedom still plays a prominent role in the American constitution and the nation’s image of 
itself. Moreover, influential nineteenth and twentieth century religious movements promoted freedom of religion. They were also behind the International Religious Freedom Act of 1998, as a consequence of which the State Department checks worldwide adherence to the principle of religious freedom, understood in the sense of “free exercise” and “non-establishment”. This example underscores that human rights undergo multiple interpretations in global society, become the object of collective social mobilisation and so have become an engine of change with respect to statehood.

Interview: Johannes Göbel

MATTHIAS KOENIG’S academic career has taken him several times to North America; for instance, he did part of his undergraduate studies at Princeton 
University. In 2010 and 2011 Koenig held the Hannah Arendt Visiting Chair for German and European Studies at the University of Toronto, sponsored by the 
German Academic Exchange Service (DAAD); he was also Visiting Professor at the Department of Sociology at the University of Michigan in Ann Arbor. In connection with his Chair for the Sociology of Religion at the University of Göttingen, he has done studies in the field of “Globalization and World Society”. He is also 
currently a Max Planck Fellow at the Max Planck Institute for the Study of Religious and Ethnic Diversity. Koenig’s publications include an introduction to human rights, published by Campus Verlag.