Posts Tagged ‘international human rights law’

Commission on Unalienable Rights: a more nuanced critique by Moyn

July 14, 2019

On July 12, 2019 Samuel Moyn published in Prospect an rather different, less alarmist approach to the efforts of the US State Department to redefine human rights [https://humanrightsdefenders.blog/2019/07/11/trump-marches-on-with-commission-on-unalienable-rights/]. The author [see also: https://humanrightsdefenders.blog/2018/04/25/has-the-human-rights-movement-failed-a-serious-critique/] makes the point that, first, it looks like the commission will exercise no real power and second that ‘rights proliferation’ is an entirely mainstream and reasonable concern. He also makes interesting points on the composition of the Commission. Whatever one’s views on this are, the piece is worth reading in its totality:

Michael Brochstein/(Sipa via AP Images – Secretary of State Mike Pompeo speaks at the State Department in Washington.

The announcement by Secretary of State Mike Pompeo that he has formed a new Commission on Unalienable Rights is being cited as one more reason to decry Donald Trump for busting norms and persecuting the worst-off. It is, The New Yorker wrote, an act of “unbelievable hypocrisy” for Trump to wrap himself in the mantle of human rights when he has violated them left and right, laid siege to a liberal international order founded on them, and embraced autocracy the world over.

It’s a natural response, but a closer look at the panel suggests that the criticism ought to fall on the symbolic politics of the commission, and our response needs to involve more than just championing the human rights Trump has been trashing, as if the status quo ante 2016 was working well.

It was remarkable, when Pompeo announced the commission at the State Department, how fulsomely he embraced the whole idea of human rights. It is a testament to the fact that—even under Trump—it is an idea that remains non-negotiable, something leaders must redefine in theory even when others suspect them of betraying it in practice.

Pompeo’s apparent worry, to judge from The Wall Street Journal op-ed he penned the day of the announcement, is what is known as rights “proliferation.” Specifically, he charged that, after the Cold War, rights advocates “turned their energy” to “new categories of rights.”

The commission’s very use of the word “unalienable,” which figured in America’s Declaration of Independence before falling out of general usage, trafficked in a founder fetishism that implied that it is the good old rights that matter, not newfangled ones or new claimants. And Pompeo doubled down on this nostalgia in his repeated shout-outs to 1776, and his admonition not “to discover new principles but to ground our discussion of human rights in America’s founding principles.”

Critics have understandably guessed that the goal is to emphasize religious freedom and free-market principles, treating abortion and LGBT rights as illicit, and possibly economic and social rights too. “In effect,” Masha Gessen wrote, also in The New Yorker, “the new commission will contemplate who is and isn’t human, and who, therefore, possesses inalienable rights.” Fetuses will be accorded rights, and the LGBT community stripped of them.

It’s a reasonable fear and something to watch. But the really significant thing about the commission may lie elsewhere.

For one thing, it looks like the commission will exercise no real power. Critics fear that its true purpose is to make an end run around other parts of the State Department, such as the legal adviser’s office and the Bureau of Democracy, Human Rights, and Labor, but those departments are also run by Trump appointees.

For another, rights proliferation is an entirely mainstream and reasonable concern, backed by such august rights thinkers as Baroness Onora O’Neill, a British liberal philosopher and House of Lords member. If everything is a right, nothing is. If there are new rights, it is not obvious the old ones have the same currency. Finally, it is never totally clear what it means to call something a right to begin with—especially since most rights are not intended to function as trumps but rather signal that policymaking somehow ought to take account of the priorities that rights name. These questions will not go away. Indeed, the idea that they are already settled, through appeal to the authority, consensus, and orthodoxy of the human rights movement, resembles the Foundermania in which Pompeo indulged.

None of this means that Trumpian human rights ought not to be treated with alarm. But for now, the international consensus around human rights among transnational experts is simply too strong to allow this commission to magically shift it. Indeed, the response to Pompeo’s announcement, which reportedly surprised Foggy Bottom, proves how weak the commission is likely to be.

For that reason, it is more interesting to focus on what this move says about the conservative movement under Trump and its changing understandings of internationalism. And to understand that, it is critical to shift from Pompeo to the members of the commission he appointed.

“Human rights” have for decades, and for conservatives and liberals alike, described the values America should stand for in global affairs, especially in a world of despots. The founders announced a revolution to that world, but mainly to secure human rights for (some) Americans in their new state. Yet like liberals and conservatives for decades, the commission, originating in the State Department, presumes that human rights are already safe for the domestic politics of the United States, or someone else’s problem. Pompeo is not changing internationalist premise, and has no power as secretary of state to do so.

Before Trump, conservative internationalism has differed from liberal internationalism on details. Conservatives in the Cold War dithered about whether to support autocrats abroad but in the end, after the ascendancy of neoconservatism, embraced “democracy promotion.” As for American liberals, this has led them to idealize America’s global military ascendancy and to support many wars. And like those liberals, after a near miss under Jimmy Carter’s presidency when human rights were born, conservatives have embraced a vision of human rights abroad that ignores economic and social rights like the entitlement to a job or basic necessities—even though they were part of the 1948 Universal Declaration of Human Rights that Pompeo also invoked.

It is perfectly legitimate to resist militarism and neoliberalism, central fixtures of U.S. foreign policy for decades on both sides of the aisle. In fact, one might have thought that Trump, who ran as a kind of anti-war candidate playing on the economic stagnation of the rest at the expense of the rich like himself, would have raised doubts about what conservatives and liberals alike have taken human rights to be about. But no. A more debatable path for conservative internationalism is suggested by the commission’s membership.

Led by Mary Ann Glendon, the controversial Harvard Law professor and staunch right-wing Roman Catholic, the most interesting thing about the commission is not its inclusion of some house publicists of the interdenominational religious right, most of whom have (like Glendon) treated the “theocon” magazine First Things as one of their main outlets. Rather, it is the inclusion of others with links to the secular far right, or at least curious about it. Former New Left intellectual Russell Berman, along with his fellow German literature specialist David Tse-Chien Pan, both have spent lots of time working for Telos, the onetime New Left journal that since the 1980s has promoted the thinking of the European far right. As political scientist Joseph Lowndes has writtenTelos has a fascinating if small role in the American circles that led to contemporary far-right nationalism.

It is no more than a hint, in short, but the most fascinating thing about the commission’s membership is therefore that it appears to be a laboratory for new collaborations between the religious right and the secular far right. And in particular, it is a setting for experimenting with what the future of conservative internationalism should look like.

If it means, as commission member Peter Berkowitz wrote recently, that “a certain restraint is again crucial to conserving a free and open international order” after decades of promoting human rights abroad the wrong way, that is one thing. But there are other possibilities. If it means a conservative internationalism that, as Quinn Slobodian has argued, actually extends free trade while striving for racially and religiously homogeneous societies, conservative internationalism will look very different.

Ironically, neither the founders nor “natural law”—the favorite concept of several of the religious conservatives on the panel—will help it decide this dilemma on the right, which is the real story of Trump’s presidency when it comes to foreign policy. And much more is at stake than saving human rights from its new defenders in resisting the future conservative internationalism may have in store.

https://prospect.org/article/can-pompeo-redefine-human-rights-trump-era

Trump’s “new” thinking on human rights in foreign policy?

June 3, 2019

President Trump and Mr. Pompeo have raised human rights abuses only sporadically, to pressure adversaries such as Iran and Venezuela, while ignoring gross violations elsewhere, a gaping inconsistency that undercuts the moral leadership of the United States. Of course, human rights are never the only concern in foreign policy and must be balanced against other factors and interests. But it does not require any more “solid definitions” to understand the horrors of Xinjiang province, where China has herded more than 1 million Turkic Uighur Muslims into brainwashing camps to eradicate their culture and language. This ethnic cleansing has come to light during the Trump administration, but its reaction has been tepid.

Do the president and the secretary need any more “solid definitions” in order to object to the methods of Saudi Arabia’s Crown Prince Mohammed bin Salman, whose hit squad was dispatched to Istanbul to kill journalist and Post contributor Jamal Khashoggi? Is the United States having trouble finding a voice to speak out against the abuse of human rights in Turkey, Egypt and Russia because of a lack of definitions — or because of a misplaced desire to butter up the authoritarians who rule them?

“Fresh thinking” is always valuable. But when it comes to human rights, time-tested institutions, principles and tools exist. They just need to be utilized.

NGOs urge Putin not to sign Russia’s “Sovereign Internet Bill”

April 28, 2019

Participants in an opposition rally in central Moscow protest against tightening state control over the internet in Russia, 10 March 2019
Participants in an opposition rally in central Moscow protest against tightening state control over the internet in Russia, 10 March 2019  Igor Russak/SOPA Images/LightRocket via Getty Images

On 24 April 2019 nine major human rights, media and Internet freedom NGOs, called on Russian President Vladmir Putin, not to sign the so-called “Sovereign Internet Bill” as it will lead to further limitations of already restricted Internet and media freedoms in the country.

The bill (No. 608767-7) amends the laws “On Communications” and “On Information, Information Technologies and Information Protection” and states its aim as enabling the Russian Internet to operate independently from the World Wide Web in the event of an emergency or foreign threat. On 16 April 2019, the Russian State Duma approved the bill in the third reading amid widespread domestic criticism, protests and online campaigning around the country, and on 22 April, the Federation Council, the upper house of the Russian parliament, approved it. If signed by President Vladimir Putin, the bill would enter into force on 1 November 2019.

The bill creates a system that gives the authorities the capacity to block access to parts of the Internet in Russia, potentially ranging from cutting access to particular Internet Service Providers (ISPs) through to cutting all access to the Internet throughout Russia.

The bill gives control over Internet network routing to the state regulator for Telecommunications, Information Technologies and Mass Communications, Roskomnadzor. It provides that the ISPs should connect with other ISPs, or “peer,” at Internet exchange points (IXes) approved by the authorities, and that these IXes should not allow unapproved ISPs to peer. The bill would also create a centralised system of devices capable of blocking Internet traffic. The bill requires ISPs to install the devices, which the government would provide free of charge, in their networks.

Under this system, Roskomnadzor would monitor threats to Russia’s Internet access and transmit instructions to ISPs through the special devices about countering these threats. Cross-border Internet traffic would be kept under close state control. The draft does not specify what the range of instructions would be, but they could potentially include partially or fully blocking traffic both between Russia and the rest of the World Wide Web, and within Russia. Nor does the draft explain how the new equipment will work, or what specifically it will do. It is clear, however, that blocking would result from direct interaction between the government and the ISP and that it will be extrajudicial and nontransparent. The public would not know what has been blocked and why.

The bill states that the new measures will be activated in the event of a ‘security threat’. The draft does not define security threats, and instead gives the government full discretion to decide what would constitute a security threat and what range of measures would be activated using the new system to address a threat.

The bill also states that Russian ISPs remain obligated to filter and block content in accordance with existing Russian law.

Further, the bill creates a national domain name system (DNS) – a system that acts as the address-book for the Internet by allowing anyone to look up the address of the server(s) hosting the URL of a website they are looking for. The bill would require Internet providers to start using the national DNS from 1 January 2021. Forcing ISPs to use the national system will give Russian authorities the ability to manipulate the results provided to the ISP outside the ISP’s knowledge and control. Authorities will be able to answer any user’s request for a website address with either a fake address or no address at all. This not only allows them to conduct fine-grained censorship but will also let the national DNS to redirect users to government-controlled servers in response to any DNS requests instead of to a website’s authentic servers.

These proposals are very broad, overly vague, and vest in the government unlimited and opaque discretion to define threats. They carry serious risks to the security and safety of commercial and private users and undermine the rights to freedom of expression, access to information and media freedom.

The bill contravenes standards on freedom of expression and privacy protected by the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), to which Russia is a party. Both treaties allow states to limit freedoms to protect national security but impose clear criteria for such limitations to be valid. The UN Special Rapporteur on freedom of expression, commenting on the ICCPR, has reiterated that these limits should be “provided by law, which is clear and accessible to everyone,” and be predictable and transparent.

Human Rights Watch, ARTICLE 19 and other undersigned organisations are extremely concerned that the changes introduced in the bill threaten human rights and freedoms in Russia. Open, secure and reliable connectivity is essential for human rights online, including the rights to freedom of expression, information, assembly, privacy and media freedom. The bill could pose a threat to the Internet’s rights-enabling features if access to the World Wide Web is wholly or partially cut off, or if arbitrary blocking and filtering of content is carried out. It would facilitate state surveillance and curb anonymity online. It also risks severely isolating people in Russia from the rest of the world, limiting access to information and constraining attempts at collective action and public protest. The Bill’s negative impact on the freedom of expression will also affect the rights of journalists and media to work freely.

The adoption of the bill should be seen in the context of other Russian legislation that severely undermines protection of freedom of expression and privacy online and fails to meet international human rights standards. These include:

. The 2016 ‘Yarovaya Law,’ which requires all communications providers and Internet operators to store metadata about their users’ communications activities, to disclose decryption keys at the security services’ request, and to use only encryption methods approved by the Russian government. It was adopted to allegedly counter ‘extremism’ but in practice, it creates a backdoor for Russia’s security agents to access Internet users’ data, traffic, and communications.

. In 2017, Federal Law 327-FZ made amendments to the ‘Lugovoi Law’ (Federal Law FZ-398, 2013) that gave the General Prosecutor or his/her deputies a right to block access to any online resource of a foreign or international NGOs designated ‘undesirable’; and, to ‘information providing methods to access’ the resources enumerated in the ‘Lugovoi Law’, i.e. including hyper-links to old announcements on public rallies not approved by local authorities.

. The recent March 2019 bills mandate blocking and penalizing websites that publish what authorities deem to be “fake news” and “insult” to authorities, state symbols, and what the legislation vaguely describes as Russian “society.”

The President of the Russian Federation should reject the bill. The Russian Government should also review other Internet related legislation, abolish the above listed laws and bring its legal framework to full compliance with international freedom of expression standards.

ARTICLE 19

Civil Rights Defenders

Committee to Protect Journalists

Human Rights Watch

International Federation for Human Rights (FIDH)

International Media Support

International Partnership for Human Rights

Norwegian Helsinki Committee

PEN International

Reporters without Borders

https://www.ifex.org/russia/2019/04/24/sovereign-internet-bill/

https://www.hrw.org/news/2019/04/24/joint-statement-russias-sovereign-internet-bill

Novelty: on-line training in human rights for Jamaican judiciary

April 23, 2019

Judges participating in break out groups at the Workshop on International Human Rights Online Training Course for the Jamaican Judiciary for the Presentation of the Online Training Platform last Thursday (11 April)

Caribbean News reports on 22 April 2019 that judges in Jamaica now have an interactive online platform offering resources and self-paced learning opportunities on international human rights law. The online platform is sponsored by United Nations Jamaica and the office of the United Nations High Commissioner for Human Rights in collaboration with the Judicial Education Institute and the Court Management Services. The platform was launched 11 April in Kingston by Chief Justice Bryan Sykes and senior human rights adviser George Abualzulof representing the United Nations resident coördinator to Jamaica.

The Chief Justice noted that “the online training platform on international human rights provides the opportunity to be aware of current and new ways of thinking about human rights and how it applies in different circumstances. It also gives us the opportunity to be aware of what is happening in other parts of the world on this very important issue.

The UN’s senior human rights adviser described the online platform as “marking a milestone in the development of professional training capacity in the administration of justice,”..

The online training platform offers modular training with an emphasis on international human rights; human rights of persons deprived of liberty; rights to a fair trial; and international human rights law. Judges learn at their own pace in a collegial environment where peers can learn while holding discussions on human rights law and standards.

Hurst Hannum wants a “radically moderate approach” to human rights

April 20, 2019

Hurst Hannum in his Fletcher School office
Hurst Hannum. Photo: Alonso Nichols
A piece by Taylor McNeil in TuftsNow of 19 April 2019 is about Hurst Hannum and his latest book Rescuing Human Rights: A Radically Moderate Approach (Cambridge University Press). Disclaimer: he and I are old acquaintances but have not seen each other for decades. I agree with much of what he says.

Hannum, a Fletcher School professor of international law, argues for bringing human rights back to the center of law and politics, while at the same time trying to define their role more carefully. Too often, he says, human rights are linked to just about everything, from punishing international crimes to seeking redress for nefarious corporate behavior and environmental degradation. “Human rights have come to mean almost anything to anyone,” Hannum said. “If something means everything, it means nothing. What we risk losing is a much narrower but more universal approach, focusing on the basic rights—civil, political, economic, social, and cultural—that government should be responsible for.

Since the United Nations Universal Declaration of Human Rights was set forth as “a common standard of achievement” every country in the world has ratified at least one human rights treaty, and most have ratified a half-dozen or more. Hannum is aware that implementation leaves much to be desired, but said that “continued emphasis on ensuring those rights that a country has already recognized is most likely to be the best way forward.”

….“While the contemporary world may seem bleak, apartheid is gone, authoritarian regimes have largely disappeared from eastern Europe and Latin America, and rights are more widely respected in countries as different as South Korea, Nepal, Tunisia, Taiwan, and Mongolia,” he said. “Many of these changes can be attributed at least in part to greater awareness of and demands for human rights, even though progress is often slow and difficult.” ..

Beginning with the Carter administration in the late 1970s, human rights became a focal point for U.S. foreign policy, “although they were never the only or most important factor in determining policy,” Hannum said. Since the Clinton presidency, the U.S. has focused increasingly on promoting democracy, not human rights per se. Hannum thinks that’s a mistake. “Obviously, democracy and human rights are related—all of the things that go into making a democracy are human rights,” he said. “But since the end of the Cold War, we’ve been pushing democracy as the solution to all problems, and it turns out that it’s not.” 

Unrealistic expectations of what democracy or a free-market economy can achieve “may help to explain the recent success of nationalists and populists, who often define democracy simply as elections, ignoring the essential human rights components of freedom of assembly, association, and expression that give such elections legitimacy,” Hannum said.

He also takes aim at human rights advocates who claim more for human rights than they can deliver—especially those who “confuse human rights with outsiders intervening in all sorts of way to fix other countries,” he said. “Human rights are about persuading governments to institute reforms within their own countries, not about imposing them from the outside.”

While he fully understands the desire to expand human rights efforts to deal more directly with contemporary problems, “we can achieve more if the goals are modest,” Hannum said. Of course, he knows that “Let’s try to achieve moderate success!” is not going to be a popular rallying cry, but he argues that such an approach seems radical these days “only because it seeks to retain the consensus and universality on which human rights are based.”

https://now.tufts.edu/articles/reviving-human-rights

New book on Theo van Boven’s crucial role in the development of the UN human rights system

March 7, 2019

cover
The Advent of Universal Protection of Human Rights – Theo van Boven and the Transformation of the UN Role

In this ‘biography’ Bertie Ramcharan tells the story of Theo van Boven’s dynamic and courageous leadership to develop UN protection. Van Boven has been a life-long scholar and practitioner of human rights. He served in the Dutch Ministry of Foreign Affairs, represented The Netherlands in the UN Commission on Human Rights, served as an expert in its Sub-Commission on Human Rights, and also on the Committee on the Elimination of Racial Discrimination. He was the Director of the UN Human Rights secretariat from 1977 to 1982, and later served as Registrar of the International Criminal Tribunal for the Former Yugoslavia and for Rwanda, and as UN Special Rapporteur against Torture.

As Director of the UN Human Rights secretariat, Professor van Boven built up the protection capacity of the United Nations piece by piece and thereby transformed the UN’s role. He initiated every protection mechanism in use at the United Nations today. He was thus ‘the father‘ of the contemporary system of United Nations protection.

This book is a study of leadership and strategy. If one is to be able to deepen the protection capacity of the UN in the future, it is crucial to understand how the foundations were laid. This book, based on the personal papers of Professor van Boven and of the author, who was his Special Assistant, tells the story of his remarkable leadership of the UN Human Rights secretariat. Published by Springer – ISBN 978-3-030-02221-1

 

In 1982 Meulenhoff published Theo’s speeches on the occasion of his forced departure from the UN. In the preface I tried to explain the how and why.

https://www.springer.com/gb/book/9783030022204#aboutBook

Pacific human rights defenders can do more to deal with extractive industries

March 7, 2019

Patrick Earle, the director of the Diplomacy Training Programme.

Patrick Earle, the director of the Diplomacy Training Programme. Photo: RNZ Pacific

The Australia-based Diplomacy Training Programme offers education and training, as well as capacity-building for NGOs, human rights defenders, and community advocates.

The NGO turns 30 this year, and its director Patrick Earle said it is refocusing its work on the Pacific region. “Because we feel there is a lot of vulnerability. There’s a lot of economic activity. A lot of people see the Pacific as a place they can take things from, and take things from in a way that doesn’t recognise standards of human rights that are accepted internationally,” Patrick Earle said.

Mr Earle said if local people gain better understanding of their rights, and of the responsibilities of governments and companies, they will be in a better position to negotiate better outcomes from local development. Mr Earle said that in the Pacific, people tended to talk about victims of development rather than beneficiaries of development. “So where people aren’t giving their free, prior, informed consent based on both knowledge of their rights but also knowledge of the outcomes of particular forms of development, then we see very negative impacts that can feed into community conflict, that can feed into environmental damage, a whole wide range of issues,.

Mr Earle said that his organisation’s work in human rights in the Pacific was revealing a pattern of issues particularly in the extractive industries. He also mentioned concerns around deep sea mining, concerns about labour in fisheries, and treatment of migrant or seasonal workers. “There’s a wide range of issues, but there’s very little knowledge and awareness of the international standards that people can use to try and shape their development.”

https://www.radionz.co.nz/international/pacific-news/383669/pacific-communities-urged-to-hold-companies-and-governments-accountable

Human rights treaties promised a better future. Why did they fail?

December 26, 2018

The end of the year is a good time to reflect on trends that affect human rights defenders. I have referred to several main pieces in the course of this year [e.g.: https://humanrightsdefenders.blog/2018/08/01/human-rights-in-crisis-here-the-last-word-before-the-summer/]. On 20 December 2018, James Loeffler, the Jay Berkowitz chair in Jewish history at the University of Virginia, tried his hands at the the question: “Human rights treaties promised a better future. Why did they fail?” The author argues that the non-binding character of the UDHR, while politically understandable, carried the seeds of its failure: “The strategic decision to sidestep hard law in favor of soft norms yielded a new universal moral language. That success, however, came at the cost of a more comprehensive legal system that could withstand politics and compel states to do the right thing. In a world sorely lacking in global leadership, the champions of human rights stand poised to earn only the hollowest of victories.


Turkey, led by President Recep Tayyip Erdogan, experienced the fastest decline in liberty in the last year, according to the Freedom House rankings. (Adem Altan/AFP/Getty Images)

…….In 2018, however, the declaration [UDHR] remains an unfulfilled promise. Progressives fault the human rights movement for ignoring global economic inequality, and regimes like Iran and Venezuela have cynically weaponized human rights to score propaganda victories at the United Nations while shielding themselves from international scrutiny. But the real problem is less overt politicization or selective implementation than poor design. The truth is that its authors, by crafting a voluntary declaration instead of an international law, left it toothless to protect humans around the world whose rights it sought to enshrine. And in doing so, they laid out a pattern for future failures. Governments might do a much better job of safeguarding the integrity of their citizens today if only the framers in 1948 had insisted that U.N. member-states immediately accept binding rules instead of unenforceable norms.

……..Eleanor Roosevelt clashed with her Soviet counterparts, who opposed trade unions and the right to private property. Latin American representatives wanted God mentioned and abortion prohibited. The Saudis opposed freedom of religion and freedom of marriage as antithetical to Islamic views. The Americans worried about criticism over racial segregation, while the British and the French feared any provisions that might undermine their colonial empires.

What emerged from these debates was a surprisingly modest vision. The goal of the Universal Declaration was not to end state sovereignty or to level the playing field of global justice. Rather, its drafters forged a legal compact in which nation-states would commit to an internal baseline of freedom and welfare for their own citizens. In fact, the final text of the Universal Declaration is remarkably neutral on many core questions of modern politics. It does not demand democracy or proscribe autocracy. It is fully compatible with communism, capitalism and even colonialism.

Most strikingly, it is technically not law at all, but only a statement of nonbinding principles. Originally, the United Nations announced the creation of an International Bill of Rights akin to a global constitution. But over the course of 1947 and 1948, the document’s framers made the fateful decision to separate the declaration from a binding legal covenant, or international treaty, that U.N. member-states could eventually sign into law. At the time, the absence of an enforcement mechanism was viewed as a necessary price to pay for global consensus. Many also assumed that this move would suffice, since Western superpowers would backstop the system with their global clout through the Security Council.

But enumerating rights without obligating states to recognize them left international human rights as soft legal rhetoric bereft of hard legal authority. States could voice selective support for norms without any independent judiciary to verify their claims or provide a forum for injured individuals.

Sharp-eyed observers said as much at the time. In 1947, Hersch “Zvi” Lauterpacht, a leading expert on international law, objected in a BBC radio lecture that “to a lawyer, the enunciation of a right without the provision of a remedy is a juridical heresy . . . What is required at this juncture of history is not the recognition and not even the formulation of inalienable human rights but their effective protection.” A year later, he added, “It is clear to me that the declaration does not carry things further and that in some important respects has put the clock back.”

Lauterpacht was prophetic, for the U.N. Commission on Human Rights, the body of elected country delegates and U.N. bureaucrats charged with supervising the Universal Declaration, quickly showed itself unwilling or unable to respond to requests for help. Between 1947 and 1957, roughly 65,000 letters arrived at its doorstep from individuals alleging human rights violations in their countries. The avalanche of mail powerfully testified to the fact that the Universal Declaration had alerted people to the ideals of human rights. Yet the commission declined to investigate these complaints; neither great powers nor small ones wanted it determining when they’d broken the rules.

In the 1960s and 1970s, the gap between the stirring language of the Universal Declaration and its actual effectiveness only expanded. When new African states entered the U.N. ranks after 1960, many veteran human rights activists hoped they would use their political clout on behalf of the long-planned legal treaties related to the Universal Declaration. They did so in 1966, ushering in two major treaties designed to implement the declaration. This eventually led to other human rights treaties, addressing issues such as racial discrimination and women’s rights, along with the controversial International Criminal Court.

Yet the patchwork nature of this new system of laws made it vulnerable to intense politicization. Worse still, the new postcolonial states proved just as determined as their former Western rulers to guard their sovereignty and pick and choose which rights to observe. In 1968, when the United Nations hosted a conference in Tehran to celebrate the 20th anniversary of the Universal Declaration, Western diplomats came away dismayed by how human rights activism in the developing world had devolved into ideological score-settling. “Many of those who attended the Conference felt that this would be an occasion for mutual backslapping,” wrote Rabbi Maurice Perlzweig of the World Jewish Congress. “As it turned out, it proved to be an occasion for mutual nose-punching.”

Curiously, the political controversy over human rights at the United Nations did not stop a growing interest in the Universal Declaration itself. If anything, disillusionment with the limits of human rights law only increased reliance on the text as a norm. Across the 1970s and 1980s, as human rights grew from an elite U.N. legal project into a grass-roots movement, groups like Amnesty International routinely invoked the Universal Declaration to mobilize public opinion. In the absence of international legal enforcement, popular culture, media and protest politics could be used to name and shame states. The climax came in 1988, when Amnesty International sponsored a series of rock concerts around the world to celebrate the declaration’s 40th anniversary. Leading musicians like Sting, Peter Gabriel, Tracy Chapman and Bruce Springsteen took the stage to promote human rights awareness — along with Amnesty’s own brand and that of its corporate sponsor, Reebok.

The end of the Cold War in the 1990s brought a burst of U.N. efforts to reverse-engineer some of the pieces missing from its half-built legal architecture. The General Assembly launched the Office of the High Commissioner for Human Rights in 1993 to serve as a neutral legal ombudsman, while world leaders gathered in Rome in 2002 to revive the old idea of an International Criminal Court. At the behest of the United States, the rights commission was restructured and renamed as the Human Rights Council in 2006 to depoliticize its work. Yet these institutional developments still do not make up a full legal system that can truly enforce the Universal Declaration as global law.

Last year, the Office of the High Commissioner for Human Rights launched a 70th-anniversary hashtag, #standup4humanrights, and a website that insists “we can all be Human Rights Champions.” All it takes, apparently, is posting individual stories online and recording an article of the declaration in one’s own language. There is hardly any mention of law or politics; it suffices to “promote, engage and reflect.” That lofty rhetoric neatly captures how human rights remain captive to their flawed postwar origins. The strategic decision to sidestep hard law in favor of soft norms yielded a new universal moral language. That success, however, came at the cost of a more comprehensive legal system that could withstand politics and compel states to do the right thing. In a world sorely lacking in global leadership, the champions of human rights stand poised to earn only the hollowest of victories.

https://www.washingtonpost.com/outlook/human-rights-treaties-promised-a-better-future-why-did-they-fail/2018/12/20/bfd843ec-ffc0-11e8-83c0-b06139e540e5_story.html?utm_term=.862e2d5e78fb

On Assange: there is more to the decision than knee-jerk reactions

February 7, 2016

The recent ruling by the UN Working Group on Arbitrary Detention has created quite a storm in and outside the human rights world. At first sight it would indeed seem almost ridiculous to maintain that Julian Assange, who is in ‘sel-imposed’ exile in the Ecuadorian Embassy, is being arbitrary detained. But a bit of reflection (which is not what the UK, Sweden practiced) would in order, especially as the countries involved still have a chance to comment the decision.

The General Council of the US-based NGO Human Rights Watch, Dinah PoKempner, wrote a clarifying piece on 5 February 2016 under the title: “On Assange, Following the Rules or Flouting Them?“. It does certainly help to see the decision in this context, in particular the consideration that Assange (whether one likes it or not) was recognized as a refugee by Ecuador and thus should be free to move.

It should not have been terribly surprising to Sweden or the United Kingdom that the United Nations Working Group on Arbitrary Detention found that the various forms of confinement suffered by WikiLeaks founder Julian Assange violate his human rights. The Working Group has many times warned that it is unlawful to force someone to choose between liberty and a fundamental right, such as asylum, which Assange now enjoys only so long as he stays inside the walls of the Ecuadorean embassy.

What is news are the deplorable rhetorical parries from the UK and Swedish governments, who both stated not just disagreement, but that the Working Group opinion would have absolutely no effect on their actions. This is not what one expects from democratic governments who usually support the UN mechanisms and international law.

“This changes nothing,” declared the UK Foreign & Commonwealth Office. The foreign secretary diplomatically called the ruling “frankly ridiculous,” disparaging the Working Group as “a group of laypeople, not lawyers” (in fact, many of the experts are professors of law or human rights or both – see below). Sweden managed to avoid imprecation, but was no less unreceptive. The Foreign Ministry declared that the Working Group had no right to “interfere in an ongoing case handled by a Swedish public authority” and continued to insist that “Mr. Assange is free to leave the Embassy at any point.” As for the Prosecutor’s Office, it declared the UN body’s opinion “has no formal impact on the ongoing investigation, according to Swedish law.”

While the Working Group does not have the authority to force governments to heed its decisions, it is the authoritative voice of the UN on the issue of arbitrary detention, and its opinions are given great weight as interpretations of binding international law obligations. The Office of the UN High Commissioner for Human Rights today attempted to remind Sweden and the UK of that in a discrete Note to Editors, saying the opinions should be taken into consideration as they are based on international human rights law that binds the relevant states.

Not much consideration appears to be happening. The UK has said that it will arrest Assange if he leaves the shelter of the embassy, either because of the European arrest warrant the Swedish prosecutor issued to investigate allegations of sexual offenses, or because he violated the conditions of his house arrest by going directly from his last UK court appearance to the Ecuadorean embassy in London to apply for asylum.

The Working Group found that Assange’s confinement – first in a UK prison, then under house arrest, and now in the embassy – violated his human rights. Given that Assange has claimed political asylum, a claim Ecuador recognizes but the UK and Sweden have not taken into account, the Working Group said his freedom of movement and security as a refugee should be respected, and compensation awarded.

Both Sweden and the UK are parties to the International Covenant on Civil and Political Rights, the treaty on which much of the decision rests, and are bound by other customary international law against returning refugees to locations where they risk persecution. Their failure to give due consideration to these international rights and obligations is what drove the conclusion that Assange’s confinement is “arbitrary.”

Let’s be clear: the issue is not Assange fleeing Swedish justice; he has continually expressed his willingness to be investigated by Sweden. What he won’t do is risk eventual extradition to the United States, which would like to prosecute him under the Espionage Act.

That is because WikiLeaks revealed the embarrassing diplomatic cables that Chelsea Manning leaked. And if you look at Manning’s fate, Assange has plenty to fear. Manning was abused in pretrial detention, denied the defense that the public interest justified her disclosures, and sentenced to 35 years. A secret US grand jury has been investigatingAssange on related Espionage Act charges for close to five years. Neither Sweden nor the UK will promise Assange he won’t be extradited, and both are close US allies in national security and intelligence affairs.

So who are the losers? Assange, who has already been confined longer than the maximum term he would serve in a Swedish prison were he found guilty, and the Swedish women who made the original allegations, and whose government won’t pursue the matter if it means protecting Assange from extradition to the US.

And now the UK and Sweden are big losers as well. Their fatuous dismissal of the Working Group won’t impugn this necessary and neutral body that was established by the world’s governments to uphold rights. But both have severely damaged their own reputation for being so ready to dismiss upholding inconvenient human rights obligations and their credibility as global advocates for rights by refusing to respect the institution of asylum.

Source: On Assange, Following the Rules or Flouting Them? | Human Rights Watch

http://www.thejakartapost.com/news/2016/02/06/un-arbitrary-detention-panel-opinionated-toothless.html

The Sovereignty of Human Rights – Food for thought on New year’s eve

December 31, 2015

For those who want to spend New Year’s even with a more general reflection on “What are human rights?” I think that Patrick Macklem‘s “The Sovereignty of Human Rights” could be interesting reading”. Patrick Macklem is the William C. Graham Professor of Law at the University of Toronto and a Fellow of the Royal Society of Canada. The Sovereignty of Human Rights, was published by Oxford University Press in 2015.

On this anniversary of the adoption of the Universal Declaration of Human Rights, it is worth reflecting on the nature of human rights and what functions they perform in moral, political and legal discourse and practice.

For moral theorists, the dominant approach to the normative foundations of international human rights conceives of human rights as moral entitlements that all human beings possess by virtue of our common humanity. What constitutes a human right, according to this approach, isn’t determined by a positive legal instrument or institution. Human rights are prior to and independent of positive international human rights law. Just because a legal order declares something to be a human right doesn’t make it so. Conversely, the fact that a human right doesn’t receive international legal protection doesn’t mean that it isn’t a human right. The existence or non-existence of a human right rests on abstract features of what it means to be human and the obligations to which these features give rise. The mission of the field is to secure international legal protection of universal features of what it means to be a human being.

On moral accounts such as these, human rights protect essential characteristics or features that all of us share despite the innumerable historical, geographical, cultural, communal, and other contingencies that shape our lives and our relations with others in unique ways. They give rise to specifiable duties that we all owe each other in ethical recognition of what it means to be human. Rights and obligations can also arise from the bonds of history, community, religion, culture, or nation. But if such rights relate simply to contingent features of human existence, they don’t constitute human rights and don’t merit a place on the international legal register. And if we owe each other duties for reasons other than our common humanity – say, because of friendship, kinship, or citizenship – then these duties don’t correspond to human rights and shouldn’t be identified as such by international legal instruments.

In recent years, political theorists have generated a distinctive account of the nature and role of human rights. Unlike most moral approaches, which focus on universal features of our common humanity, political conceptions define the nature of human rights in terms of their discursive function in global politics. Human rights, according to political conceptions, don’t necessarily correlate to the requirements of moral theory. Global human rights practice, for several political theorists, is a social practice whose participants invoke or rely on human rights as reasons for certain kinds of actions in certain circumstances. They represent reasons that social, political, and legal actors rely on in international arenas to advocate interfering in the internal affairs of a state and to provide assistance to states to promote their protection. What this practice reveals is that human rights protect urgent individual interests against certain predictable dangers associated with the exercise of sovereign power. States have a primary obligation to protect urgent interests of individuals over whom they exercise sovereign power, but external actors, such as other states and international institutions, have secondary obligations to secure protection when a state fails to live up to its responsibility.

Legal theorists of human rights, in contrast, typically start from the premise that international law, not moral theory or political practice, determines their existence. An international human right to food, for example, exists because the International Covenant on Economic, Social and Cultural Rights enshrines such a right. Its international legal status as a human right derives from the fact that international law, according to the principle pacta sunt servanda, provides that a treaty in force between two or more sovereign states is binding upon the parties to it and must be performed by them in good faith. Similarly, the right to development is a human right in international law because the UN General Assembly has declared its legal existence. The international legal validity of a norm – what makes it part of international law – rests on a relatively straightforward exercise in legal positivism; a norm possesses international legal validity if its enactment, promulgation, or specification is in accordance with more general rules that international law lays down for the creation of specific legal rights and obligations.

Determining the legal validity of an international human right is a relatively simple legal task. But legal validity doesn’t determine the normative purpose of a human right, and legal conceptions of human rights that seek to explain their purpose in terms that go beyond positivistic accounts of their legal production threaten to reintroduce moral and political considerations into the picture, which undermines the possibility that human rights can be understood in distinctly legal terms.

For example, human rights in international law are legal outcomes of deep political contestation over the international legal validity of the exercise of certain forms of power. Such contestation doesn’t cease upon the enactment of an international instrument that enshrines a human right in international law. Contestation continues over its nature and scope in particular contexts as diverse as individual or collective disputes requiring international legal resolution, opinions offered by international legal actors on state compliance with treaty obligations, juridical determinations of the boundaries between domestic and international legal spheres, and negotiations among state actors that yield binding or non-binding articulations of international legal obligations. Once transformed from political claim into legal right, and as subsequently as a result of interpretive acts that elaborate their nature and purpose, human rights in turn empower new political projects based on the rules they establish to govern the distribution and exercise of power. How to separate the legal dimensions of human rights from their political origins and outcomes is a challenge to those who seek to ascribe legitimacy to human rights in distinctively legal terms.

In my work, I seek to meet this challenge by defining the nature and purpose of human rights in terms of their capacity to promote a just international legal order. On this account, the mission of international human rights law is to mitigate the adverse effects of how international law deploys sovereignty as a legal entitlement to structure global political and economic realities into an international legal order. It contrasts this legal conception of international human rights with dominant moral conceptions that treat human rights as protecting universal features of what it means to be a human being. This account also takes issue with dominant political conceptions of international human rights, which focus on the function or role that human rights play in global political discourse. It demonstrates that human rights traditionally thought to lie at the margins of international human rights law – minority rights, indigenous rights, the right of self-determination, social rights, labour rights, and the right to development – are central to the normative architecture of the field.