Human Rights: The State of the Art
Whether in opposition to slavery or apartheid, or challenging laws that criminalize same-sex relations, it is above all when people feel a sense of injustice that human rights come alive. As such, human rights campaigns today can often be as much about building a social movement as about drafting legislation.
I was asked to write some introductory remarks about human rights and the “state of the art”. This seemed like a relatively straightforward task, but then I started wondering, is human rights really an art? Or is it more of a science? There is luckily no space to answer this question properly but let me offer some shallow thoughts.
One could teach and write about human rights stressing the accepted meanings of the terms and the strict rules for interpreting the terms in the treaties. This would be to see human rights as a “term of art”. It could offer a scientific approach which allows an authoritative decision-maker to determine whether an act counts as torture under international law; whether denying someone access to a job or to healthcare counts as illegal discrimination; or whether taking down a post should be considered a denial of freedom of expression, or alternatively a necessary interference to prevent a violation of the right to privacy or incitement to racial hatred. It is possible for lawyers to keep the discussion of human rights confined within these contours, and treat the mapping of human rights and the possible remedies as a sort of science: violations can be detected and the results of the investigation can be confirmed with scientific rigour. Human rights violations can be mapped and tabulated.
But the thing about human rights is that they come alive when people feel a sense of injustice. When human rights claims are made, they are often not reclamations made under existing law but rather protests that the law itself is unjust. Complaints about slavery or apartheid were made in the face of laws that facilitated these injustices. Human rights claims related to gender injustice or in opposition to targeted killings by drones draw on deep conceptions of morality and appeal to solidarity beyond what has been agreed to by states as a matter of law. Demonstrations demanding dignity or justice or freedom of association may be protesting the existing laws in force. The law may be part of the problem rather than the obvious solution. And yet claims about human dignity and the right to life have succeeded in forcing an end to the use of the death penalty in some states; demands of respect for privacy and family life have led to the abolition of laws criminalising same-sex relations and discrimination on grounds of gender identity or sexual preference. Complaints that states and companies have not done enough to reduce CO2 emissions may soon lead to binding rulings based on the idea that the resulting climate change violates human rights today and in the future.
Human rights talk has to speak to its audience and reflect contemporary concerns, in a way just like much contemporary art. To craft a good human rights argument could be considered an art. One might need to suspend a scientific approach to the law. To win a human rights case one should certainly be familiar with human rights rules as terms of art. But human rights talk has to speak to its audience and reflect contemporary concerns, in a way just like much contemporary art. Today the human rights movement is concerned about climate justice, gender identity, reproductive health, vaccine equity, the dominance of the tech and social media companies, and levels of structural violence and inequality that are obviously unjust.
A state-of-the-art human rights campaign probably has less to do with the science of treaty drafting, and much more to do with the art of building a social movement. Of course some will always worry that the currency of human rights will become devalued if the meaning of human rights is inflated to cover everyone’s wishes. But human rights claims have never really only mirrored what people are already entitled to. Finding the spot where a demand based on a sense of injustice becomes an obvious entitlement is the art of human rights argumentation. To understand how these demands play out in practice we need all the social sciences that we are fortunate to have represented in the Institute’s student body and faculty. This issue of Global Challenges allows for a plethora of scientific voices and allows us to see how various social sciences contribute to a better understanding of the role of human rights today. The future of human rights, on the other hand, may depend on finding the artist in all of us.
BOX: The Mission of the Geneva Human Rights Platform
Geneva is the world capital of human rights. Over 1000 UN staff, about 300 independent UN experts and 250 NGO representatives work throughout the year on human rights issues. At the time of the main annual conferences, such as sessions of the Human Rights Council or the Forum on Business and Human Rights, some additional thousand participants will again join in to the debates, with the current COVID pandemic easing.
The mechanisms for accountability on human rights matters at the UN’s disposal include the UN Human Rights Council as the main political UN organ dealing with human rights, and the UN Treaty Bodies (TBs), which are committees of independent experts, tasked with overseeing the implementation of the nine core human rights conventions by those UN members states who have ratified the conventions.
Yet, in particular this expert system is in need of reform. Numerous cycles of strengthening efforts could not keep pace with the growth of the system and the persistent shortcomings of its functioning. Since the establishment of the first human rights treaty body in 1970, the TBs, for various reasons, have faced several types of significant and complex challenges. Most strikingly, what is referred to as the “Treaty Body System” has never been designed as one coherent system, but treaty bodies grew in number to ten as of today, their creation being in most cases directly stipulated by the relevant treaty in isolation of the existing “system”. This has led to a challenge as per the coherence of those bodies’ work. Substantively, several provisions in the nine treaties and nine optional protocols overlap. The challenge of overlap is compounded when treaty bodies have different approaches to identical human rights challenges in their recommendations. Despite the fact that nine of the ten treaty bodies have similar functions, they all maintain different working methods and rules of procedure, in spite of years of sustained efforts for harmonisation.
The Geneva Human Rights Platform (GHRP), created in January 2018 at the Geneva Academy, provides a network for the emergence and dissemination of innovative solutions to current challenges of the global human rights system. Its instruments include policy research and events in different formats – from public and web-cast conferences, to expert round-tables, to private meetings for the UN’s human rights experts that sit on the oversight mechanisms of the Human Rights Conventions, or hold so-called Special Rapporteur mandates.
Additionally, the platform provides a horizontal link between Geneva-based actors, as it has become evident that discussions proceed too often in parallel silos without profiting from potential synergies. Linking discussions from Geneva to New York and other international hubs is an additional area of development of this platform. Most recent developments include additional outreach and service functions, via the creation of an online community of practice for the use of UN human rights experts and the piloting of so-called focused reviews in country, creating direct interaction between the UN human rights accountability system and national actors.
This is completed by a training hub, providing practitioners from states and civil society the necessary knowledge and tool for an effective engagement with those UN human rights mechanisms, which is in the end the very reason and legitimation for the mechanisms’ existence.
Felix Kirchmeier
Manager of Policy Studies and Executive Director of the Geneva Human Rights Platform
TIMELINE: Major International Human Rights Treaties
The Universal Declaration was the first detailed expression of the basic rights and fundamental freedoms to which all human beings are entitled.
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN in an effort to prevent atrocities, such as the Holocaust, from happening again. The Convention defines the crime of genocide.
The Convention relating to the Status of Refugees protects the rights of people who are forced to flee their home country for fear of persecution on specific grounds.
The Discrimination (Employment and Occupation) Convention (No. 111) of the International Labour Organization prohibits discrimination at work on many grounds, including race, sex, religion, political opinion and social origin.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obliges states to take steps to prohibit racial discrimination and promote understanding among all races.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) protects rights like the right to an adequate standard of living, education, work, healthcare, and social security. The ICESCR and the ICCPR (below) build on the Universal Declaration of Human Rights by creating binding obligations for state parties.
Human rights protected by the International Covenant on Civil and Political Rights (ICCPR) include the right to vote, the right to freedom of association, the right to a fair trial, the right to privacy, and the right to freedom of religion. The First Optional Protocol to the ICCPR creates a mechanism for individuals to make complaints about breaches of their rights. The Second Optional Protocol concerns abolition of the death penalty.
Under the Convention on the Elimination of All forms of Discrimination against Women (CEDAW), states must take steps to eliminate discrimination against women and to ensure that women enjoy human rights to the same degree as men in a range of areas, including education, employment, healthcare and family life. The Optional Protocol establishes a mechanism for making complaints.
The Indigenous and Tribal Peoples Convention (No. 169) of the International Labour Organization aims to protect the rights of Indigenous and tribal peoples around the world. It is based on respect for the right of Indigenous peoples to maintain their own identities and to decide their own path for development in all areas including land rights, customary law, health and employment.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families aims to ensure that migrant workers enjoy full protection of their human rights, regardless of their legal status.
The Convention on the Rights of Persons with Disabilities aims to promote, protect and ensure the full and equal enjoyment of all human rights by persons with disability. It includes the right to health, education, employment, accessibility, and non-discrimination. The Optional Protocol establishes an individual complaints mechanism.
This Declaration establishes minimum standards for the enjoyment of individual and collective rights by Indigenous peoples. These include the right to effectively participate in decision-making on matters which affect them, and the right to pursue their own priorities for economic, social and cultural development.
This Declaration asserts that everyone has the right to know, seek and receive information about all human rights and fundamental freedoms and should have access to human rights education and training.
Based on the information produced by the Australian Human Rights Commission