[IRPCoalition] [governance] Putting "Human Rights" in Perspective

Norbert Bollow nb at bollow.ch
Sat Dec 13 11:23:02 EET 2014

On Fri, 12 Dec 2014 08:08:51 +0200
"michael gurstein" <gurstein at gmail.com> wrote:

> A very important analysis of the historical and related contexts for
> "Human Rights".
> http://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights

I strongly disagree with Posner's claims that “human rights law has
failed to accomplish its objectives” and that “a radically different
approach is long overdue.”

In fact I’m amazed to see this kind of attack on human rights law.

My response to this is also online as a blogpost, at

Some of Posner’s points are valid, especially where he speaks of the
kind of human rights discourse which is in fact a form of cultural and
legal imperialism. That is a real problem, and in regard to that I
agree with Posner’s concluding sentence that “a humbler approach is
long overdue.”

It is true that appropriately and correctly citing international human
rights law is often not easy, and the discourse is not helped by the
fact that in mass media based public discourse, there is generally no
room for the important subtleties around which aspects of the
internationally recognized human rights are to be accepted as absolute,
and which aspects can be legitimately restricted in view of other
concerns. Posner’s claim that international human rights law “is
hopelessly ambiguous” is simply not true. But it is a difficult topic
area, and even when human rights advocates take the trouble of writing
up careful arguments, the media will generally not report about the
careful arguments. I have some personal experience of what I speak
about here. For example, Tages-Anzeiger, one of the leading newspapers
in Switzerland, has just cited me as claiming that a certain Internet
related measure which is being discussed in one of the processes of the
Swiss political system would be a human rights violation. (The article
is here:
http://www.tagesanzeiger.ch/digital/social-media/Anonymitaet-im-Internet-auf-dem-Pruefstand/story/17214030 ;
it’s in German.) In my answer to the journalist’s question, I had also
given him an explanation which justifies my claim, but unsurprisingly
that explanation did not make it into the journalist’s article.
Fortunately, the Internet supports not only mass media but also niche
media for example in the form of blogs, and I have been able to put my
explanation online independently. (It’s at
https://www.digitale-gesellschaft.ch/2014/12/12/anonyme-organisatoren/ ,
in German.)

I think that Posner would probably not be going nearly so far in his
(in my opinion vastly overreaching) criticism of human rights law if he
had had the opportunity to live in Swtzerland for a while (which is
where I live) and see how human rights law is an indispensable part of
our legal system. When a Swiss law violates a human right, as I believe
it is currently the case with the law on telecommunications
surveillance, the one available recourse is to take a legal case to the
European Court of Human Rights. (Some information on a legal challenge
to this, in which I am involved as one of the complainants, is at
http://sustainability.oriented.systems/challenging-swiss-data-retention/ .)

More generally, in an increasingly globalized world, emphasizing those
principles of governance which are absolute and universal is
increasingly and fundamentally important. We cannot afford to follow
Posner and look for “a radically different approach.” Rather, we must
improve the understanding of human rights law among generally educated
people, so that the discourse becomes less confused and so that the
temptation to claim that international human rights law “is hopelessly
ambiguous” will no longer be there. This applies in particular in the
context of Internet governance where purely national governance is
simply not an option. In the Internet governance realm, the
socioeconomics of network effects make it largely unavoidable that some
kind of global consolidation and then top-down process plays out. The
question is therfore mainly just whether at the top of that top-down
process are the economic interests of profit-oriented corporations and
associated imperialistic interests, or whether there is a reasonably
democratic public policy process based on the principle of primacy of
human rights.


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