Extraordinary PhD thesis: ‘Every Organ of Society’: Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights Law

Julie Fraser defended her PhD at Utrecht University on 31 May, 2018. Her research is exemplary for the philosophy of the CCHRC

This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). Despite this momentum, human rights continue to be violated in all states around the world, revealing the gap between law and practice. The challenge of implementation – of making legal norms a lived reality – is now most pressing. How to address this challenge was the focus of Julie’s PhD research completed earlier this year. This research focused on criticisms of state-centricity in international human rights law, as well as its tendency to take a legalistic approach to implementation. Identifying the shortcomings of state-centric legalism, this research proposed involving informal social institutions the domestic implementation of human rights due to their cultural embeddedness and ability to guide human behaviour.

Cultural embeddedness is important as a contributing factor to the poor implementation and violation of rights is their ongoing contestation. Scholars have long connected human rights’ lack of cultural legitimacy with their violation. This relates to the longstanding cultural and postcolonial critiques of human rights and their perceived Western bias, which are as old as the UDHR itself. Numerous scholars have addressed these critiques over time, with some mapping out ways to reconcile human rights with diverse cultures. Scholars have advocated culturally sensitive approaches to human rights that include local cultural norms and actors – social institutions – in programs for effective implementation. Such approaches promote reliance upon non-legal measures of implementation, and upon the dynamism of culture and the agency of those within cultural communities. The purpose of such approaches is not only to promote the effective implementation of human rights, but also to demonstrate due respect to the broad cultural diversity around the world. On this basis, culturally sensitive approaches to human rights are argued to be both pragmatic as well as principled. On this basis, this dissertation examined in detail the role of social institutions in the domestic implementation of international human rights law.

The first part of this task involved analysing the applicable international legal framework. As a principle of international law, the human rights treaties grant States parties broad discretion in implementation, creating obligations of result and typically not conduct. This preoccupation with the law has given rise to a critique of legalism in human rights, emphasising the limitations of the law and that other disciplines provide important insights to human rights in context.

Another aspect of legalism is that it necessarily focuses on the State and diminishes the role of other non-State actors (NSAs) in implementation. These non-State norms and actors (social institutions) can be crucial in effective human rights implementation. Given the implementation gaps, violation of rights around the world, and the limitations of legislation and the State to fully protect rights, Julie assessed that further research was needed into the role of other measures and actors.

Therefore, this dissertation includes a multi-disciplinary case study examining the role of social institutions in implementing human rights in context. The study analyses the role of Islamic law and institutions in implementing women’s right to family planning in Indonesia. This is significant as often NSAs – and cultural/religious actors in particular – are portrayed as obstacles to human rights enjoyment, and not as assets in their protection. However, as seen in the Indonesian example, they can be essential to human rights’ domestic implementation. For instance, as international human rights law is inherently top-down, it is necessarily external/foreign to the local communities to which it applies. The perception of human rights as foreign (in substance and/or form) reduces their likelihood of being respected in practice, especially where rights conflict with local cultural norms. The Indonesian example demonstrated how locally embedded and legitimate social institutions can bridge this gap and present human rights as compatible with and supported by cultural norms. In this case, the work of Islamic actors complemented that of State authorities, with Muslim women using their agency to shape religious norms and practices in line with the right to family planning.

This research showed that Islamic law and institutions are central to reproductive health in Indonesia and are too empirically important to be disregarded. Despite this, they are virtually absent in the UN treaty bodies’ Concluding Observations to Indonesia, which continue to focus on the State and on legislation. Given that the treaties all recognise other measures of implementation and the involvement of other actors, the treaty bodies should adjust their approach without having to change their structure or mandate – just their practice. Therefore, the thesis advocate further consideration by the UN treaty bodies of rights implementation beyond the possibilities offered by formal State institutions and to include also social institutions. This is done on a practical basis, to secure better effectiveness of implementation measures, and also a normative one, to better respect States’ cultural diversity. As such, the thesis advocates culturally sensitive approaches to human rights implementation and to the involvement of social institutions therein. On this basis, this research relates to wider themes in human rights, such as the need for new/better narratives to connect rights meaningful to local communities all around the world, as well as the shift away from State-centricity toward actors and norms below and beyond the State.

(This post is slightly edited version of a blog Julie posted earlier; you can find other publications by Juylie on the Publications page of this site)

Address by Professor Abdullah An-Na’im

The Cross-Cultural Human Rights Centre was privileged to be addressed by Professor Abdullah An-Na’im on 30 May 2018 at the Vrije Universiteit, Amsterdam. The keynote given by Professor An-Na’im concerned the topic of ‘Decolonizing Human Rights,’ discussing some of the most fundamental contradictions and continued forms of colonialism that persist in the field of human rights.  Professor An-Na’im is known in both Human Rights and Legal circles for his scholarship on cross-cultural dialogue, and aptly started his keynote by addressing the problematic reality of a human rights monologuethat in part drives the need for decolonisation.

To start, An-Na’im emphasised the transcendental nature of human rights, whereby human rights, unlike any other system bestows rights on people by virtue of their humanity.  In this regard An-Na’im laid out that no other qualification of membership is necessary, rendering human rights a pivotal and fundamentally valuable system in a diverse world.  An-Na’im pointed out however, that these rights often conflicted with civil rights, where the latter pertains to the rights of the citizen and not the human.  An-Na’im pointed out that civil rights, though often seen as synonymous with human rights, are given by the state that qualifies who is entitled to a set of rights, whereas human rights remain fundamentally the ownership of every human being.

Following from this, An-Na’im spoke of a fundamental misnomer in current understandings of human rights. This misnomer is embodied in the widespread idea that liberal societies enjoy rights the most, hence the drive to render ‘illiberal’ societies ‘liberal.’  The reality however reflects a different scenario whereby people and communities in the so-called liberal world increasingly do not enjoy rights by virtue of their humanity. Despite these realities however, Western societies are often thought of as the harbingers of human rights, particularly as a result of their attention and emphasis on civil rights.  An-Na’im however brought these realities to the fore and questioned their very assumptions as part of the process of ‘decolonizing human rights.’ Equally, he stressed that the reality and recognition that not a single state applies human rights to all people by virtue of their being human is integral to dismantling the idea of a hierarchy of compliant states.

Instead what has emerged, according to An-Na’im, is liberal relativity that seeks to shame all other societies for being relativist, when liberal states themselves are complicit in neo-colonialism abroad coupled with internal oppression. He went on to note that, if anything, the vast majority of humanity is not concerned with civil liberties, but instead are pre-eminently focused on ensuring human dignity through the base of socio-economic and cultural rights. Undoing this confusion of human rights with civil rights should form a critical basis of decolonising human rights.

An-Na’im highlighted three core ideas, namely the importance of concept, content and context.  As applied to human rights it is the concept that is universal, the content controversial and contested, and the context often forgotten.  For An-Na’im, including these three ‘c’s into how human rights are approached is indispensible to decolonisation.  He argued that we have been led to subscribe to a simplistic notion of success, in which rights are protected only when elites are committed to certain values. The ultimate political prize, namely, the state, however, determines such values. Ensuring that the drive of human rights protection is not confused with the quest for state power is therefore essential to realising human rights that matter (and not rights dressed as human rights that are mobilised to quench the thirst for state power). Finally, as a way out of the impasse, An-Na’im proposed internally driven cultural transformation and political mobilization as the best if not the only mechanisms to achieve sustainable change and human rights protection.

The keynote address was followed up by discussants, Prof. Eva Brems, Stacey Links and Vivian Aiyedogbon all of whom pointed to different challenges to the process of decolonisation. Some of these included, the limits of ‘dismantling’ the state to ensure people centred human rights approaches, the limits of a state-focus as the ultimate site of colonisation, as well as the challenges associated with a variance of ‘content’ of human rights across societies and communities.

Professor An-Na’im’s keynote address was well received and sparked lively debate.  As a centre we thank him once again for taking the time to address and challenge our thoughts on human rights in the reality of a multicultural world. (this summary is a slightly edited version of a text kindly drawn up by Stacey Links)

CSU-HRC Appoints Professor Tom Zwart as Senior Academic Advisor

On December 5, 2017, the Human Rights Center of China’s Central South University (CSU-HRC) held an appointment ceremony in Qingdao, Shandong province. Professor Mao Junxiang, executive director of CSU-HRC and vice-dean of School of Law, issued a letter of appointment for Senior Academic Advisor to Professor Tom Zwart, professor of Vrije Universiteit Amsterdam and director of Cross Cultural Human Rights Centre in the Netherlands. The ceremony took place in Qingdao, because both professors were there to participate in the Seminar ‘Building a Community of Shared Future for Mankind in the Area of Human Rights‘.

CCHRC lands at Vrije Universiteit Amsterdam

     

 

 

After a considerable period of virtual existence, the CCHRC has found a welcome home at Vrije Universiteit Amsterdam (VUA). A critical mass of academics from a broad range of disciplines at VUA has expressed support for the ideas behind the Centre.

The very name of VUA means ‘Free University’, founded as it was by a group of Protestant citizens who felt that society had a need for a Protestant university, free from the church and free from the State.

VUA also has a long history of interest in regions outside familiar Europe. To mention one example, the Centre for International Cooperation of VU Amsterdam (CIS-VU) is a Department founded to make knowledge and skills generated at VUA application for developing nations.

While virtual reality is the talk of the town these days, we are delighted to start our tangible existence in Amsterdam. It is the best location for the Centre we could have wished, only one train station away from Schiphol Airport, the portal to the rest of the world.