The Future of International Human Rights Governance

I think that there is no doubt that the biggest challenge facing the UN is the challenge of implementation. Over the period since the Universal Declaration of Human Rights was adopted, which is now almost 70 years, a lot of good law has been developed that is expressed in the human rights treaties themselves. We have a good body of law. It's been developed progressively. But the implementation is the greatest challenge and particularly the implementation that the UN can take responsibility for because the UN system is essentially a system built around sovereign states. Legally compulsory but effectively voluntary compliance is very difficult for UN agencies to ensure the implementation of the standards that they are meant to be promoting and very difficult for international accountability of any state to be effectively enforced. So I think that that is the greatest challenge for the system without a doubt. To turn to the second part of your question then, the role of national human rights institutions (NHRIs) is precisely implementation on the ground. They are independent of the UN; they are products of their own state. And so they are very much part of the domestic state system but, because according to the international standards they are meant to be independent -and the good ones are independent- they do have the capacity to operate on the ground in ways in which the UN can't. The role for the UN then in relation to NHRIs is to encourage their establishment, assist their strengthening and protect their operations. The UN sometimes does that well but often unfortunately it does not do it well enough.

And what about the opportunities for the NHRIs?

Well I think the opportunities arise from their status as independent nationally based institutions. They are part of the state system in their own countries and so they can't be criticised for being foreign or for seeking intervention from outside the state itself. They are domestic. They are part of the system. They are established under the law of the country in which they operate and they should be respected at the national level far more than any other kind of institution precisely because they are a product of our own national system. So they have opportunities that others don't have if they use them as effectively as possible. What that means then is being independent in fact and not just independent in theory, being prepared to be outspoken where necessary, to take responsibility for human rights protection, to be both critics of the State and collaborators with the State so that domestically they are the most expert institution in interpreting human rights as well as the most committed and the most effective in implementing human rights. They have unique opportunities. Whether they seize those opportunities or not depends very much on the willingness of the leadership of the institution to play the kind of independent role that is intended for them.

Sri Lanka and Myanmar have newly elected governments and they have been making progressive baby steps in decreasing human rights violations whereas in the Philippines there have been considerable setbacks such as summary killings, attacks on media, etc. How do you compare the progress of these countries' developments within the Asia Pacific region?

I think the three states that you've chosen highlight many of the challenges that exist within the Asia Pacific region but also the opportunities that can arise, sometimes unexpectedly.

Myanmar has moved since 2010 from being a complete military dictatorship to being a society that certainly still has significant military influence but essentially has a democratically elected government. And that's a profound change in Myanmar. The starting point there was a very low starting point in human rights terms and even in economic and political development terms. Myanmar had been under military rule for over fifty years by the time this change took place. So it's starting from a very low base, and it has got a long way to travel and while, quite rightly, there is a great deal of frustration at how little distance has been travelled so far, I think we need to be fair to both the new government and even the military transitional government that preceded it in recognising what a low starting point they had and how far they have to go.

Sri Lanka is a contrast to that because the starting point was not so low notwithstanding the enormous and very serious human rights violations that occurred over a long period of the civil war and particularly in 2009, the time when the war came to an end. Sri Lanka is a country with a more firmly developed democratic tradition. It also therefore has at least a past in which the independence of the courts was known and respected, where human rights were at least understood and taught, and an economy that doesn't have the excuse of being extremely poor as it does in Myanmar. So notwithstanding the grave violations during the civil war, Sri Lanka was not starting from as low a point as Myanmar. And the progress there has been much greater. I think it is because of that higher starting point firstly that, to everyone's surprise, the Rajapaksa government was defeated. That was not expected by the former government and president when the elections were called, it was not anticipated, I don't think it was even anticipated by the opposition who found themselves with an elected president and a majority government in Parliament very quickly. And change there occurred very quickly when the new government took office. It's quite extraordinary to me that disappearances and extrajudicial killings, which were a routine daily fear under the former government even in the five or six years since the end of the Civil War, literally stopped overnight. This is just an indication of the extent to which the former government was implicated in the disappearances and the killings that were taking place. There are still serious problems in Sri Lanka, and I don't want to minimise their seriousness at all, but the experience in Sri Lanka was a great pointer to how quickly change can occur and how much progress is possible in a short period of time. I think that is a very positive story.

The third example you gave moves in the opposite direction from Myanmar and Sri Lanka, that's the Philippines. Change can also occur very quickly in a negative sense and not just a positive sense. The Human Rights Commission there has been very vocal in its opposition to the policies of the new President that are resulting in very large numbers of deaths. The President was quite unequivocal during the election and subsequently as to what his intentions were. There was no attempt at hiding what he proposed to do or hiding his responsibility for it now. In fact he proudly claims responsibility for it. The human rights situation in the Philippines has deteriorated to what has to be the worst level since the Marcos regime was overthrown in 1986. The big fear is that it may deteriorate further still, it's very worrying.

I guess these three examples do show both the capacity for rapid change positively and negatively but also the fragility of human rights overall. We're not talking in Asia Pacific, and in fact we're probably not talking anywhere in the world, about a battle for human rights that has been fought and won. Certainly we do have very good legal systems at national and international levels. But we can't simply assume that human rights are well regarded, well respected, properly entrenched in law, and will be implemented - protected and promoted. It's a constant daily struggle for human rights in any society, including mine in Australia, not just in these three examples.

Using the Philippines as an example, we've talked about all the extrajudicial killings of human rights advocates amidst the anti-drug campaign, how do you think we can best protect human rights defenders within local jurisdictions?

It combines both your first and second questions and certainly comes back to the effectiveness of the international human rights system.

The UN has been vocal about what is going on in the Philippines in the last couple of months. The Secretary-General has spoken out, the High Commissioner for Human Rights has spoken out repeatedly. There are UN officials within the Philippines itself who've made the organisation's views very well known. Has that had any impact on the Philippines President? It would appear none whatsoever. In fact, his reaction has been the same kind of macho cowboy attitude as it has been to everyone and everything else. "If that's how you feel then we'll leave the UN" he says. But I guess we need to also look at how he has responded to others who have criticised him. I mean, his comments about the President of the United States have not been particularly flattering either and the United States has historically been a principal ally and supporter that provides funding and military support to the Philippines since independence. So if the US is not able to exercise influence on the Philippines President, to persuade him that the current spate of extrajudicial killings is totally unacceptable, then I don't think we can be too critical of the United Nations itself for being similarly spectacularly unsuccessful.

I've got no doubt that the long-term prospects are positive. The President will not succeed, but a lot of people are going to suffer, a lot of deaths will occur before we reach that point where one way or another it is stopped. We are unfortunately a long way from that point. And because our international system, including our international legal system, is still based almost entirely on sovereign States, there's not much that anybody can do about it.

I put the Philippines situation in a much bigger frame. I think it points out a crisis in democracy overall. We should not forget that President Duterte was democratically elected, that he has overwhelming popular support for these policies since he was elected. That means that not only is he wrong, but the Philippines people are wrong. And we have to admit the fact that democratic votes did not necessarily achieve human rights-respecting results. There have been, in the debates about democracy, concerns in the past about majoritarian dictatorships. I think we are seeing or have seen the risk of that in many states these days. What that means is that human rights are at grave risk, particularly the rights of those who are minorities, who are not part of the majoritarian dictatorship. Democracy is not simply about the majority being able to do whatever it wants to do. It's about enlightened democratic rule within states that respect the rights of all citizens and all groups. This is now a democratic crisis in almost every state in the liberal democratic world. So the Philippines is extreme but it's also symptomatic.

Coming back to the international human rights system. I want to talk a little about the authors that have opposed it and criticised it. Such as Stephen Hopgood who controversially talked about the "endtimes of human rights" and the decline of Western power, whereas Eric Posner criticised the system as being too ambiguous without clearly defined rules and rights. How would you counter these critiques?

Well the first thing is not to take them too seriously. People say a lot of things for the sake of selling books. We had Francis Fukuyama famously calling the end of history back in the mid 1990's, the triumph of liberal democracy. But in fact we've seen a crisis in liberal democracy itself. So the views of populist academics should be taken seriously but not too seriously. They should not be considered the last word or even the right word on any particular subject.

Yes, the human rights regime is being challenged at the moment. It's being challenged even in countries that have been traditionally among the greatest supporters of human rights. We see talk even in this country (UK) of withdrawal from international human rights mechanisms and treaties and arrangements and this is very serious. I see it as being a subset of the broader crisis of democracy that I have referred to rather than just being a human rights crisis. It certainly is the product of a certain amount of weariness about change processes. It is the product of many people being left behind by change processes and therefore feeling completely disaffected. Those kinds of social experiences have to be taken seriously and not simply rejected. The experiences of people always have to be taken seriously. But to draw from these the conclusion that the whole system of human rights is an abject failure and that we're past that is moving into the area of critique for the sake of critique or prophecy for the sake of selling books rather than being a proper analysis of what the situation is.

They say that there are approximately 400 rights per country and that these rights are still quite ambiguous such as freedom of speech, different countries have different interpretations of this right; does it extend to hate speech for example or defamation of religion. What do you think of this?

I can see validity in the critique, but I don't necessarily see the result of the ambiguities, if you like, or the lack of clarity as being problematic. Laws always have to be interpreted., We have courts to interpret the laws at local and national and sometimes international level. Interpretations change over time and laws change over time as well. We even have interpretations of tax law that vary over time. Tax law runs into thousands and thousands of pages and yet still we have disputes over what it means. So what they're critiquing is the nature of law. I don't think they're critiquing the nature of human rights of itself.

Are there global standards? Yes, there are and they're expressed in treaties and treaties have been overwhelmingly ratified by states and accepted. How they apply and interpret the law however is subject to debate. It can also be subject to litigation, and will vary from time to time and place to place in some instances. The European Court of Human Rights talks about the 'margin of appreciation' in the application of the European Convention on Human Rights. That concept of 'margin of appreciation' has extended into human rights law beyond Europe. It says that governments have a legitimate role in deciding how human rights laws are implemented within certain limits. The total repudiation of human rights law is not acceptable but within certain reasonable limits there is a margin in which individual states or individual governments can look at how the law should be applied within their jurisdiction. So this is an attempt to marry regional or international standards with national circumstances. I think that is a good way of looking at it.

It may be in time that we have only a single highly detailed standard and it may be that greater clarity is required. But clarity in international law develops over time in the same way as the common law in this country and in my country developed over time. Clarity in international law is developing over time as well. We know far more now, to take the example of the freedom of speech, of what the provisions of ICCPR Article 19 mean, what those qualifications (the areas within which some restrictions on freedom of speech are tolerated) mean, what is legitimate and what is illegitimate. And we have international mechanisms. whether treaty bodies or courts at a regional level, that are able to look above the level of the State and say whether the interpretation applied at a state level is legitimate or not. So I think we have a system that is evolving, that is not perfect, that is not complete and never will be. Our jurisdictions in the UK and Australia with such a strong basis in the common law should understand how these kinds of legal developments occur and should certainly not throw out the baby with the bathwater by saying that the whole area of human rights law is now illegitimate simply because it's developing in the same way as the common law developed.

What would you advise are the best ways to approach a career in human rights?

Come to Asia.

There's a lot of work to be done there?

There is a lot of work to be done there. You know, it's a dynamic region with great change taking place, a huge amount of energy, a commitment to building better societies. It's the flipside of Europe. It's a region with an orientation on the future not a nostalgia for the past. It's a region with enormous energy and dynamism that is building and not stagnating. So leave the UK. I don't know what the future is here, if there is one. Come to Asia.

The human rights field can be quite competitive. Do you have any advice on actually entering it?

It is, yes. Look, on the one the one hand I certainly want to encourage anyone who's interested in entering the human rights field to pursue that aspiration. It's important work, it's fulfilling work and you're working with fantastic people. Some of the most exciting and inspiring people I know are people who are working in the human rights world. And for me, working with some of these people, is one of the most enjoyable and energising things that I could possibly do. So don't give up lightly the aspiration to get involved in this area. But I know it's hard.

There are two comparisons I make about my life and times. First of all, when I was at university doing law, we basically didn't do any human rights. I was doing law before the two human rights covenants came into effect. They had been adopted but they hadn't come into operation. I think I might have had one or two classes as part of public international law on anything to do with human rights. And the idea of having a career in human rights was absolutely inconceivable. And yet I've worked full time in human rights for almost 40 years. If anybody had said to me when I was a university that that was what I would be doing with my life, I would have laughed and thought that that was not possible. Yet by contrast now there are tens of thousands, if not hundreds of thousands, of jobs in the human rights field. So there are opportunities to work full time in this area and to make a living - not to starve. And to enjoy the work. That possibility did not exist at all, let alone in these numbers, 40 years ago. But it is highly competitive and making a mark and breaking in can be very difficult.

I know. I've worked in human rights NGO's where every time a position was advertised we had 200 or 300 applications. And I know that, when the UN advertises human rights jobs, they can get 600 or 700 applications. Even standing out among the crowd becomes difficult in those circumstances, even having a written application seriously considered. So, it's a matter then of qualifications. It wasn't necessary in the past to have a master's degree but I think it is necessary now if you're going to be competitive. Not because a master's degree of itself teaches you things that you need but simply to be competitive I think you need a master's degree. You need to have experience in doing some form of human rights work, either as an intern or a volunteer. Volunteering with human rights NGO's is very important because, firstly, it shows commitment and, secondly, it builds experience. It's very hard, if you don't have the formal qualifications and if you haven't got some form of experience you can point to, to break into a permanent job. I'm not happy saying that because I think that there is a huge amount of talent that is being missed, but I'm afraid that my experience in recruiting in organisations indicates that that is the case.

People will inevitably say "well how can I get experience if I can't get a job?" and that's fair enough. Regrettably the only way to get experience without having a job is internships or volunteer work. I'm really sad that internships generally require self-funding and that means the people who have got access to money get to do what people who don't have access to money don't. I think this is a fundamental issue of grave disadvantage, of inequality, in human rights recruitment. But it's possible, while going to university, to volunteer in a human rights NGO. There's more to life than study and actually doing the work while you're studying is a way of getting the experience that otherwise you might not be able to get. So there are a lot of human rights NGO's out there, many of them look for volunteers, and doing that kind of work in those NGO's is the way to get experience if you can't do an internship or even prior to doing one.

This interview was conducted by Lauriane Wolfe (MSc Global Governance and Ethics).