Remarks by David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, at the ABA Human Rights Luncheon on February 5, 2018 at the ABA Midyear Meeting in Vancouver, Canada.
Thanks to Mike Pates and Betsy Andersen. It’s a real honor to follow people like Aryeh Neier, Thomas Buergenthal, Elissa Massimino, Patricia Williams, and others, real heroes of the human rights movement in the United States.
Human rights lawyers have indeed been at the vanguard of social and legal change for generations, both in North America and around the world. Without Judge Theodor Meron, we may not have had the development of the war crimes tribunals for the former Yugoslavia and Rwanda in the early 1990s. Without Aryeh Neier, the power of the Helsinki Process—so vibrant and compelling in the 1970s—may not have consolidated into today’s global human rights movement through Human Rights Watch and Open Society. Without Shirin Ebadi, Iranian advocates may have lacked the global language to advocate for rights in the Islamic Republic of Iran. Without Asma Jahangir, Pakistan’s human rights movement would have lacked a powerful voice for rule of law in the country and around the world.
Without many of you in this room, the ABA would not have a dedicated Center for Human Rights, injecting global norms, norms that bind the United States, into the practice of all sorts of lawyering in the United States.
These are just a few of the lawyers, lawyers who considered themselves human rights lawyers, who made and are making substantial change globally and locally.
As a category of professionals, acting within established human rights institutions, or within governments, or within law firms and acting pro bono, we as human rights lawyers have mastered the rules that govern state behavior. Indeed, we have often drafted those rules, negotiated them, interpreted them, and built the institutions that enforce them.
We have quite a bit to be proud of—if not our own work, the work of those we consider our mentors, heroes or predecessors.
And yet, here we are, at a moment of severe challenge to the framework of human rights law. I do not intend to make a political talk; I want to spell out what I see as five major challenges to the human rights movement at home and abroad today.
But, of course, it is also impossible to ignore the fact that the foundations for human rights law—a system of institutions that instantiate the rule of law, governed by individuals chosen through fair democratic process and implement the standards of rule of law, due process and nondiscrimination—are at risk everywhere, including the United States.
I want to spell out what I see as five challenges and then conclude with what are, hopefully, some reasonable steps forward to protect the gains made by human rights lawyers over the past fifty years or so.
FIRST: I want to focus on the United States. The challenge we face, as American human rights lawyers operating within the United States, is political and legal. Notwithstanding the fact that Eleanor Roosevelt led the effort to adopt the Universal Declaration of Human Rights, we are constantly fighting a battle for relevance. We have to struggle with the very notion of human rights as a cognizable subject in American law and politics. So many of our colleagues, in practice and the academy, imagine human rights to be a political category, a subject of international law that requires “air quotes” around “law”.
The misunderstanding of human rights as political has been a challenge for American lawyers for decades. When the George H.W. Bush administration—to its great credit, let me emphasize—transmitted to the Senate the International Covenant on Civil and Political Rights in 1992, one of the principal arguments for ratification was the impression U.S. engagement would have on states just emerging from Soviet domination. Membership in the ICCPR would give the United States a strong basis to urge real democratization and rule of law in the former Soviet space. It was sold to the Senate as a tool for foreign policy rather than a mechanism to bind federal, state, and local authorities to global standards. After all, as both Presidents Bush and Carter, who sought ratification in the late 1970s, said, ratification would require no legislative enactment by the United States.
Ratification embedded that political stance in our participation in the central civil and political rights document of international law. But it also embedded into our legal system a basic flaw: because the ICCPR was expressly seen as nonself-executing, it would be up to Congress to provide individuals with a cause of action under it. And, of course, Congress never did that. As a result, human rights lawyers in the United States cannot generally rely on the treaties of human rights law—the few the United States has ratified—to pursue legal claims in U.S. courts. Human rights thus becomes a subject of foreign behavior, not our own. We lose the hard-edged development of legal doctrine in our own system because we don’t test our claims about human rights law in our own courts.
SECOND: The second challenge is related to the first. The United States is simply a limited player in the global development of human rights law its interpretation and enforcement worldwide. For, in addition to our failure to implement legal norms domestically, we resist adjudication or evaluation globally. We do not accept the jurisdiction of the Inter-American Court of Human Rights, for instance, or the competence of the Human Rights Committee to evaluate claims against the United States.
Meanwhile, the European Court of Human Rights, the Inter-American Court of Human Rights, and now the African Court of Human and People’s Rights (not to mention sub-regional human rights courts in West and East Africa) are pushing forward a human rights agenda. Those courts are establishing a common vocabulary for human rights adjudication, one from which the United States is largely absent.
This is largely a challenge for American lawyers and policymakers. But it also a global challenge insofar as it suggests a break among those who implement human rights law as human rights law—and those develop an entire universe of doctrinal thinking around human rights law—and those, like the United States, that do not. It suggests an attenuation of the shared community of values that the United States has long promoted, and it undermines the ability of the United States to help shape the future development of human rights law.
THIRD: That leads to the third challenge I want to note, the stresses on the political institutions of human rights law today. The United States remains engaged in the bodies of human rights interpretation and enforcement at the political level, such as the Organization for Security and Cooperation in Europe and the Human Rights Council. Our diplomats make human rights-sounding arguments there. But again, these are places where we are largely concerned about the behavior of others, not ourselves (excepting particular moments such as periodic review).
Even so, these institutions are under stress. The makeup of the Council, for instance, can easily be criticized for its inclusion of obvious human rights violators, some egregiously so. The U.S. Ambassador to the UN, Nikki Haley, has repeatedly warned of the possibility that the United States would withdraw from the Council because of its treatment of Israel.
Despite these threats to the Council’s credibility, it provides valuable tools for human rights lawyers worldwide: Universal Periodic Review gives us the opportunity to engage in shadow reporting across a range of civil, political, economic, cultural, and social rights; the Special Procedures system gives individuals around the world an address within the UN system to raise serious human rights violations outside the normally politicized environment of the Security Council, General Assembly, or Human Rights Council; the High Commissioner for Human Rights has a remarkable platform to call out bad behavior; and numerous commissions of inquiry launched or managed by the Council, dealing with such issues as North Korea and Syria, have highlighted major human rights abuses. Criticism is important for this system, but walking away from it, leaving it to be dominated by violators, or bringing it crumbling down will cause needless damage to defenders worldwide.
FOURTH: The fourth challenge I want to address is different substantively but also connected to the problem of U.S. ambivalence to human rights law as law. The substantive challenge is the remarkable power of corporate entities in areas foundational to democratic practice. Here I am talking about the power of social media and search engines and their global dominance outside of China and (mostly) Russia.
To a large extent, I think that these companies have been engines for remarkable progress in the field of access to information and freedom of expression. But the sweet story of community and connectivity has been overtaken, for good reason, by all the ills of the Internet, whether it’s fake news and propaganda, or harassment and abuse, or the hatefulness of misogyny, racism, anti-Semitism, and so forth. And the companies have exacerbated the problems, not necessarily by their substantive policies but by the slowness to understand that real transparency is essential to understanding the role they play in democratic and authoritarian societies alike. Indeed, the failure of transparency has helped authoritarians as they aim to crack down on activity online.
Here’s where I want to connect the human rights challenge I mentioned. I think that one of the results of the American resistance to the vocabulary of human rights law—indeed, to its reality as an instrument of legal change and as a legal framework—can be seen in the slowness of the American companies to adopt terms of service and community standards that resonate with communities beyond the United States. Think about them as global actors. Facebook, for instance, has over 2 billion active users, and only about 200 million of them are in the United States. These are global actors, for which global norms should be central. But in part because human rights law, let alone international law, is largely untaught in our law schools or discussed in major public or judicial environments, the leaders of these companies don’t immediately turn to human rights as a tool for shaping their environments.
FIFTH: Finally, I want to note that the human rights challenges we face differ from previous generations in one important respect. In the past—perhaps the distant past, but still—multilateral treaty-making would be a valuable and effective way to promote progressive norms or to codify emerging ones. Today, however, there are diminishing possibilities—to put it gently—for human rights lawmaking as a matter of treaty law.
Moving forward, and in brief, I want to put forward three recommendations for us as human rights lawyers:
- State-level implementation. As noted, the future for human rights implementation in the United States does not run through Congress. It runs through municipalities, counties and state authorities. Cities have been pushing such innovations as implementation of the requirements of the Convention on the Elimination of Discrimination against Women (CEDAW) notwithstanding the U.S. Government’s failure to ratify. Lawyers are pushing human rights claims in state courts. State and local officials attend meetings of human rights mechanisms in Geneva at the UN. The ACLU and others promote Bringing Human Rights Home. I hope that we can capitalize on these initiatives and, over time, see state legislatures enabling individuals to bring human rights claims, as causes of action, in state courts.
- We must promote a renewed commitment to the institutions of international human rights law, especially the Human Rights Council and Human Rights Committee and other treaty bodies. U.S. participation is key, but so is the participation of America human rights lawyers.
- We must promote the implementation of human rights law in the standards of corporate work. The work of John Ruggie and the adoption of his principles, as the UN Guiding Principles on Business and Human Rights, should extend beyond Geneva and into corporate boardrooms across America. General counsel should ensure that the Guiding Principles are implemented as part of their companies’ compliance regimes. Terms of service for internet actors should involve adherence to human rights law. And the U.S. Government should promote just this sort of compliance as well.
Thank you very much.
UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression