This panel was convened at 1:00 p.m., Friday, April 11, by its moderator, Margaret Satterthwaite of NYU School of Law, who introduced the panelists: Robert Harris of the Office of the Legal Adviser at the U.S. State Department; * Makau Mutua of the SUNY Buffalo School of Law; Yvonne Terlingen of Amnesty International; and Constance de la Vega of the University of San Francisco School of Law.
REMARKS BY MAKAU MUTUA ([dagger])
When I was asked to be on this panel I feared that there was not much to say because I have mixed emotions about the expectations that were created by the reform of the UN Commission on Human Rights through its replacement by the Human Rights Council. Quite apart from semantics in terms of the name change, I think we have to be realistic that nothing much really has changed. This is fundamentally the nature of inter-governmental organizations (IGOs) in the context of human rights where states are both the insiders and outsiders. So, one way to look at the change from the Commission to the Council is to think about five fellows meeting in Room A and then deciding that they do not like the ambience of the room and the circulation of the air in the room and therefore move to Room B. You can draw your conclusions there--whether their meeting in Room B as opposed to A is a substantial departure from practice.
THE EFFECTIVENESS OF THE COUNCIL
I think that we have to be careful that we are not looking at a magician's illusion. I say that because I think we have to be realistic about what to expect from an intergovernmental body in the area of human fights. The traditional tension between state sovereignty and international supervision exists and is real. The trade-offs are there. Rarely will you find an IGO which has coequal parts in terms of strong norms and strong enforcement mechanisms. Either you get a flaccid institution for enforcement or you get a strong institution but with weak norms. It is not a conspiracy--I think it is just the way states think. They make sure that norms float out there in the open, in orbit, without straight paths for implementation. Norms that threaten states are not desired by states. Institutions that threaten states are not desired by states, especially in the area of human rights. And so that is why you see institutions that rhetorically speak to our nobility as a human race but have little capacity to realize that nobility. That is why I have limited expectations of the Council, and accordingly measure my ambitions for it in that respect.
We ought to see the Council as a political body whose purpose is to be a gentle civilizer of nations at the rhetorical level. Because even if we go further and look at, for example, international tribunals like the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Tribunal for the former Yugoslavia (ICTY), one has to wonder, quite frankly, what is being achieved by these tribunals in terms of the domestic reconstruction of societies? Has, for example, the ICTR in Tanzania had any demonstrable effect on reconstruction inside Rwanda? I would say the answer is no. The two processes are disconnected. So, with respect to the Council, I think we have to look at it as a rhetorical forum whose purpose is to inspire nations and countries to aspire to a higher nobility, understanding that the role of the Council as an enforcer, as a supervisor, and as an implementer, is sharply limited; that leaves the Council with the most important function, in my view, and that is the function of setting standards. That is where it is at, and enforcement of those standards surely must be left at the national level. That is where things are going to happen. That is where the harvesting of those norms will take place, at the national level. The consideration of who participates in internalizing those norms at the national level is a poignant question for civil societies in various countries. So I have this limited ambition for the Council myself, realizing that primarily it is a political body, whose purpose is norm setting.
I just want to disagree slightly with the first speaker who said we have all the norms and standards that we need, and so the challenge now is one of enforcement. I don't think so. I think if you look, for example, at the human rights corpus, as a body of norms, we have done very well on questions of political despotism, which is, addressing questions of civil and political rights, relationships between states and citizens. But we have been bereft and very poor in thinking about economic despotism, and we act as though free markets are natural, and that they should be given sanction by the human rights movement. That is a vast area that is completely left unattended.
THE COUNCIL AND UNIVERSALITY
I think that when we begin talking about a value system that societies across the globe should subscribe to, we are talking about the necessity of universality. But I think in that word is hidden many dangers. Universality is not a natural phenomenon. We have to think about what we are going to make universal, why we are going to make it universal, and how we are going to make it universal. There is no reason for us to assume that we have seen a glimpse of eternity and that we know what the good society looks like and that we know how to get there. I think that if we make those assumptions, we are going to find ourselves in trouble in several respects. First, if that were the case, we would not really have the kinds of problems that we have today around the globe.
An earlier speaker said that enormous progress has been made over the last sixty years. When I look around the globe, I doubt that that is true. I mean, we have Darfur, Iraq, Afghanistan, and the economic crisis around the globe--we have enormous problems. The globe appears to be melting down. What progress really has been made? So it seems to me that when we talk about universality, what we ought to be focused on is the question of legitimacy of those norms that we can agree upon as being universal. And we ought to think about who is going to agree on the universality of the norms, understanding that universality is a function of negotiated normativity. We negotiate norms to make them universal. We should not impose them on people. Nor should states impose those norms on cultures-instead cultures, traditions, religions, and other important variables must participate in the negotiation of what is universal and what is not. We should also agree on how and why to create a hierarchy of norms. And as I pointed out in my earlier comment, we have been focused almost entirely on the political side and have forgotten the economic side.
We have assumed the naturalness of markets in creating human rights norms. If you look, for example, at the human rights documents the word capitalism does not appear in those documents. The word imperialism does not appear in those documents. The word political democracy does not appear in those documents. The documents run away from the most important words of the last hundred years, and duck their heads in the sand. In fact, the human fights corpus has failed to address economic questions. In order for us to create a legitimate corpus of human fights that addresses the lives of people, especially in countries that are developing, as put by Robert Harris to my fight, we have to think about people who live on less than a dollar a day in many parts of the world, in India, in Kenya, in South Africa, in Latin American and all these places, and craft a...