The magical words: ‘international human rights’

my Trade Tripper column in the 27-28 August 2016 issue of BusinessWorld:

“International human rights law” always had this mystique. Regularly mentioned yet rarely understood. Like “sovereignty.” The moment someone utters it, like one would in an incantation, the expectation is of openings to lines of argument from which there can be no opposition. Hence, from entitling transgenders to use another name to the issue of Marcos’s burial site, international human rights law is invoked by earnest activist lawyers everywhere.

If only it were that simple.

The truth, however, is that international human rights has always been a contentious concept.

Hence why London School of Economics’ Susan Marks (“Human Rights Myths,” Oct. 2012) relevantly brought up the facts that the universality of international human rights shouldn’t be presumed, of its relative novelty, that the bulk of international human rights law are either ambiguously crafted or in the nature of “soft law”, and that it is not above ideological agendas.

Hence why a State would be foolish to indiscriminately bind itself to such.

International human rights -- which essentially arose after the two world wars but had its emergent heyday “out of the anti-totalitarianism and anti-authoritarianism of the 1970s” -- simply stands on “the ‘myth of presumptive universality”: that rights are uniform in form and substance for all. But such is far from the reality.

Another international human rights myth is its supposed apolitical nature: “the human rights movement’s claim to be engaged in a ‘pure defense of the innocent and powerless against power.’” But this is hogwash. As illustrated by Marks, “there is no such thing as a pure defense of the innocent and powerless, and that human rights are, in any event, not just defenses against power, but themselves significant forms of power.”

And perhaps because they know their advocacies are unacceptable in many countries, human rights activists picked on the tactic of preaching that international human rights laws are “sui generis.” But sui generis according to whom? Their fellow human rights activists?

It’s due to the forgoing that international human rights law has such a dismal record. As Eric Posner points out (The Case Against Human Rights, Dec. 2014): “The truth is that human rights law has failed to accomplish its objectives. There is little evidence that human rights treaties, on the whole, have improved the well-being of people. The reason is that human rights were never as universal as people hoped, and the belief that they could be forced upon countries as a matter of international law was shot through with misguided assumptions from the very beginning.”

“The central problem with human rights law is that it is hopelessly ambiguous. The ambiguity, which allows governments to rationalize almost anything they do, is not a result of sloppy draftsmanship but of the deliberate choice to overload the treaties with hundreds of poorly defined obligations. In most countries people formally have as many as 400 international human rights -- rights to work and leisure, to freedom of expression and religious worship, to nondiscrimination, to privacy, to pretty much anything you might think is worth protecting. The sheer quantity and variety of rights, which protect virtually all human interests, can provide no guidance to governments. Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another.”

Finally, even assuming that international human rights -- at the specific level -- can be identified, determined, and enforced, the same cannot deviate from natural law. In short, any such rights should be based on a logical and reasoned appreciation of human nature.

As noted philosopher Jacques Maritain explains, human rights being based on natural law, then it can be fairly said that there can be no human right contrary to natural law: “The moral absolutes give legal reasoning its backbone. xxx These moral absolutes which are rationally determined and essentially determinate, constitute the most basic human rights.”

International law itself recognizes the connection of natural law to rights. One easily sees this in the creation of the United Nations (where Jacques Maritain played a not insignificant role), as well as important documents on international human rights such as the 1948 UN Declaration on Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, amongst others. Thus, one basis of international law is said to be the natural law, upon which our concepts of jus cogens (as well as erga omnes) is rooted.

Hence, this utterly relevant insight by our Supreme Court (from Ang Ladlad vs. Comelec, 2010): “not everything that society -- or a certain segment of society -- wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. xxx [To do so will have] the effect of diluting real human rights.”

The point here is this: people are much better off relying on and having confidence in Philippine statutory law than the ambiguity that is international human rights.