The non-religion of human rights
I delivered the speech below at UN City in Copenhagen today, a keynote for a convening hosted by the UN Development Program’s Nordic offices. I modified it somewhat in delivery to keep to time.
“Religions die hard,” a friend recently wrote. “The latest is a religion born 75 years ago this week — the religion of human rights.”
I take this as a common view among those who are skeptical when it comes to the project of human rights.
Human rights, however, is not a religion. It is not a mystical set of values or spiritual norms aimed to guide human behavior. It is not a faith-based system of belief or a utopia. It has advocates, not adherents; lawyers, not laity.
Contemporary human rights arose as an attempt to affirm human dignity and freedom in the aftermath of the Second World War and to restrain government power in the places where the rubber of the State hits the road of humanity. As a body of law, human rights seeks to embed the protection of the individual in law and political institutions. It is a structural intervention intended, on the one hand, to establish minimum global standards and, on the other hand, to protect individuals and minorities in the face of democracy’s often out-of-control majoritarianism and the world’s occasional bouts with populism and oppression.
Human rights, as a legal framework, is far from perfect, in part because of governments that refuse to participate fully and apply the rules to themselves or their allies or those that seek to redefine and abuse it to protect their own power, and in part because the law itself provides exceptions that governments delight in exploiting (especially for national security and public order).
Human rights is not perfect because it’s a product of state negotiation and compromise.
It may be that many think of human rights merely as aspirational and, in that sense, religious, because, in addition to its concrete legal rules, it provides a vocabulary for assertions of freedom in society, a vision of good governance.
That does not make it a religion.
To the contrary, it provides a framework for politics and empowerment. Billions of people around the world deploy its language and rely on its rules in the face of state repression.
Those who expect human rights to be something more may expect purity. They may be legitimately outraged at the hypocrisies of the world and blame human rights when it is, in fact, the powerful, the corrupt, the autocratic who are to blame. The abstractions of human rights? The United Nations? The civil society organizations mediating competing voices and claims? Easy targets, but ultimately they are not to blame for the failures of states to protect the individual. That’s on the conscience of those in power and politics.
All this I’ve said so far is prelude to a current moment of despair at human rights’ shortcomings and a broad critique of its advocates. Complaints about human rights’ effectiveness are legitimate, even necessary, if we are to build a world of accountability. But they must be rooted in the facts of contemporary human rights practice rather than fictions and partial truths.
The despair predates the past two months; any human rights advocate knows this and struggles against it, from Chinese repression in Xinjiang and Hong Kong, Russian aggression against Ukraine, internet shutdowns in Cameroon and elsewhere, to he crushing of a democratic transition in Myanmar, Saudi Arabia’s murder of Jamal Khashoggi and war on Yemen, the Islamic Republic’s brutalizing of the Woman-Life-Freedom protests in Iran, Hungary’s or Belarus’ destruction of independent media and civil society, the United States’ family separation policy by the Trump administration, and on and on.
Here in Europe we see the rise of a vision of national societies that increasingly excludes ‘the other,’ especially migrants. The dehumanizing rhetoric is not just a relic of 2015 but a persistent if not growing feature of politics that, only last month, saw a Dutch election in which a race-baiting, anti-Islam politician won the most votes.
This is not the finest hour for state compliance with their obligations under international human rights law — or for the popularity of the arguments we in human rights make.
And, then of course, there is the world since October 7th.
Two months have passed since Hamas breached the cage known as the Gaza Strip and carried out the worst mass atrocity against Jews qua Jews since the Holocaust — murder, sexual violence, mutilation, hostage-taking. At least 1200 murdered and hundreds kidnapped. No genuine human rights advocate can look away from and fail to condemn the atrocities of that day and the continuing crime of hostage-holding.
Two months have also passed since Israel responded with a commitment to “destroy” Hamas, bombarding neighborhoods and burying terrorists but also thousands of innocents. A friend in Cairo recalls how a Palestinian neighbor has lost thirty-one members of her family in Gaza (“so far”). “I don’t even know how many times I can offer my condolences, or for how many losses I’m consoling for,” she says. Can you really blame human rights advocates who condemn Israel for what so many see as disproportionate killing of civilians, while some Israeli leaders call for “Nakba 2”?
The same friend who writes that the religion of human rights has died also writes that UN declarations “did nothing to stem the chain of conflicts, cruelties and injustices that led to the horrific massacres of October 7, the subsequent flattening of much of Gaza” and much else, all while the UN stood by “with thunderous silence.” I understand that perception and sometimes rail against UN inaction and hypocrisy myself. The leading global human rights organizations, many argue, hardly denounced the violence, with responses that were “insidious”, with merely passing references to Iran’s responsibility and a generally “bloodless response” to October 7th.
I don’t hold the UN’s brief, nor would I want to. The UN can defend itself or not — the same UN that created a special rapporteur position to investigate the ongoing and massive human rights violations by Iran, one for Israel’s behavior in the occupied territories, one for Russia’s aggression in Ukraine, one for the Taliban’s repression in Afghanistan, and others — even if it may often seem politicized, feckless and powerless. Should Iran lead even a minor meeting in the Human Rights Council? No, it shouldn’t. Should China? Should Saudi Arabia? Nope. But again, we’re not talking about the Church (maybe not the best example) but about a collection of states.
I think the critique of silence must be directed at the states that make up the UN, but regardless, it reflects a common view. Even so, the UN is not the same as “human rights”, a body of law embraced and implemented well beyond Geneva and New York. We should nonetheless consider the critique and address whether it means there are steps advocates should be taking to improve the perception if not the reality of human rights work.
I have seen how some human rights organizations have struggled to articulate clear and categorical condemnation of the atrocities of October 7th. This is, in part, because of the longtime repression of Palestinian freedom and national aspirations in the West Bank and Gaza, and thus for some — but far from all — a willingness to explain history and context may sadly morph into justification of the unjustifiable.
But not all have struggled. Again, I hold no brief for these organizations and imagine that a discussion of the role of human rights organizations in this time of empathy’s disappearance would be valuable. Still, it is worth pointing out that Human Rights Watch, two days after the attack, condemned Hamas’ war crimes. Amnesty International, within the week, called for Hamas’ accountability for its “chilling disregard of human life.”
Has human rights ended threats to Israeli life, or the massive bombardment of Palestinians in Gaza? It has not, a failure we all must fight against while recognizing and demanding action from the states and non-state actors who are actually responsible and evade accountability.
Thanks to the work of those who drafted the Universal Declaration and the treaties that have followed, we have tools for action. Indeed, human rights, as a set of obligations binding on states, has come an incredible distance in seventy-five years.
The world has adopted ‘universal’ treaties aiming to promote and protect civil and political rights and economic and social rights, to eliminate racism and discrimination against women and the disabled and minorities and others, to end and punish torture and acts of genocide. Regions have created courts to oversee national implementation of those national obligations and develop a robust body of international human rights law. Nations have integrated those obligations into their domestic law and created National Human Rights Institutions to monitor their own compliance.
The human rights system at the global and regional levels, for all its weaknesses, has given voice to victims, mechanisms to highlight crimes by states. It has pioneered norms to hold companies accountable for their complicity in the violations of human rights. Do they and the UN often fail? Indeed — but mainly thanks to states and the failure to implement.
All this said, we could do better.
For one thing, the failure to implement may itself be a problem that human rights must reckon with — how do we build a system of enforcement? How do we ensure that states hold their own violators accountable? How do we ensure that states hold each other accountable?
We also face a crisis of empathy that is anathema to human rights practice. We need to emphasize and reemphasize that human rights is not a body of law built on reciprocity among states. It is built upon individual guarantees, what the state owes individuals, every individual, a body of law built not on inter-state relations — though it is rooted in treaty law — but on promises of observance of human dignity. We all must do our part to see that centrality even in, perhaps especially in, contexts of crisis and war.
Further, the global community of professionals and defenders dedicated to holding states and companies accountable is often elite, lawyers and NGO activists often drawn from top schools who do amazing work that may nonetheless seem disconnected from the kind of social and political movements that actually attain, claim and hold onto power to improve the world. I plead guilty to this critique. Do we compromise too much? Do we have too little ambition?
We need to align our practice within current systems of power with our need to effect real change. We need theories of change that depend not only on litigation and the long path of normative change through Human Rights Council resolutions and treaty body decisions; we need a theory for how we translate our work to power and its exercise.
Throughout human rights law, there is a phrase that imposes a constraint on when a state may restrict the exercise of rights. It is the requirement that any such limitation be “necessary in a democratic society”. This phrase, or something like it, appears throughout regional and global human rights treaties. It is our job, as advocates, to ensure that any restriction strictly meets that burden. What is democratic society if not a constitutionalized framework for, yes, majority decision-making but also, and most importantly, the protection of human rights of its members?
This is not a religious calling but a secular one, a call for state adherence to the rules developed since 1948. It is not idealism but simply a demand that states do what they promise to do. It is not the panacea to humankind’s or the planet’s problems. But it is a call for steps toward promoting and protecting human freedom.
Seventy-five years on, this may not feel like an apt moment for celebration. But it is a moment to address those who bear the most responsibility for today’s gravest assaults on individual life and human dignity, and to commit to strengthening the tools that human rights law offers.
Thank you.
