The Samoan Observer recently reprinted Eric Posner’s ‘The Case Against Human Rights’, an article originally published in The Guardian. As a Fulbright Scholar brought to Samoa in a human rights capacity, I could not in good conscience leave this article without response. While certain points in the article are well-taken, namely that the enforcement of human rights treaties remains weak, its overall message that international human rights law is ineffective must be rebutted.
Posner points out that the central problem with human rights law is that it is ambiguous with poorly defined obligations. By this measure, essentially all constitutions in the world could be labeled ineffective, yet few legal scholars would posit such an absurd argument. It is important not to forget that human rights are aspirational in nature (that is why it is always posed in terms of ‘the progressive realization of human rights’), so simply because states fail to live up to the ideal of human rights does not mean that the entire framework is inherently flawed. I caution those who agree with Posner to not throw the proverbial baby out with the bathwater. And, even if you wish to do so, I ask: what is a better alternative?
As a human rights lawyer, I understand acutely the complaints about how international law and the institutions that uphold it function. But that is only one side of the coin; there is still much to be said about the efficacy of human rights treaties—an achievement for which the author does not give due credence. First and foremost, human rights law has put vulnerable groups onto the international agenda, providing a platform for advocacy. If you were to ask women’s groups, child advocates, disability rights organizations, and the like whether they thought human rights law is a failure, you would get a very different picture than the one painted by Posner.
These previously widely neglected issues have become top priorities for national and international policymaking, budget allocations, and the targeting of development assistance. To this end, the seemingly ‘aloof’ international framework has had a direct and concrete impact on people’s lives, health, and well-being because to some degree, governments have had to put their money where their mouths are. Prior to the nearly 70-year evolution of the human rights regime, few governments in the world focused on these groups and none were held accountable for not doing so.
The human rights principles of equality, nondiscrimination, participation, accountability, etc. are relevant for any country in the world, irrespective of government differences. This is because patterns of marginalization, exclusion, and discrimination are consistent across the world and inequality exists in every country across the globe. With this in mind, the principles enshrined in the universal declaration do have universal appeal and they can capture the imagination. The human rights framework has encouraged advocates to think, not only in strictly legal terms, but also about strategically using the underlying principles to inform and shape policymaking and, most importantly, action. The elevation of civil society as a measure of accountability on governments, both foreign and domestic, has become a force to be reckoned with. To this end, the impact of human rights is undeniable.
The central strength, therefore, in human rights law can be found in its local and community-based capacity to prioritize the most vulnerable and marginalized members of society within a specific country context. Samoa is a prime example of this, particularly as it prepares for its first ever State of Human Rights Report due to Parliament this June.Using the fundamental rights enshrined in Samoa’s constitution—which also happen to behuman rights in and of themselves (inter alia, right to life, freedom from inhuman treatment, freedom of religion, and so on and so forth)—and complementing them withbasic human rights principles, the Report will capture the Samoan context of the status of human rights.Working closely with community groups and other stakeholders, this Report aims to give a voice to the vulnerable and speak on their behalf. Contrary to Posner’s arguments, Samoa is using the human rights framework for incremental improvements without the hubris.
Furthermore, Fa’a Samoa—an inherently beautiful and democratic way of life—also plays a large role in this process, exemplifying how culture can complement human rights law and vice versa. When society functions equally, as human rights principles provide for, it can lead to a stronger application of cultural values, especially respect and dignity. The challenge is to collectively encourage and convince government leaders to revisit laws and policies in order to ensure better protection of those rights, paying special attention to those most adversely affected by existing conditions. In this manner, Samoa is working to progressively realize human rights, which must be applauded, not ridiculed.
Finally, Posner’s argument is not new. Politics continues to soil the original aim and intent of human rights, but this is less a failure of the ideal of human rights as it is a failure of governments and abuses of power in general. This would exist with or without the human rights law. However, I prefer an aspirational system instead of its predecessor, ‘gunboat’ diplomacy. Of course this system isn’t perfect; no system is. But the fact that human rights are not confined—that they embrace a wide range of socioeconomic factors—andthat they create the conditions upon which people can lead their lives with dignity is something to be praised, not disparaged. Establishing the ideal of human rights is a feat in and of itself because it enables us to perceive what immense tasks are tied to such an assertion. This is not failure; this is progress.
By Johanna Gusman
Fulbright-Clinton Fellow – Samoa
Full, Bright Reflections 