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

Seth Johnson seth.p.johnson at gmail.com
Sat Dec 13 15:57:24 EET 2014

Hi Norbert -- in your Swiss data retention article, you say
"Switzerland does not have a constitutional court which would be
tasked with reviewing a law in regard to whether it appropriately
respects the constitution and in particular the human rights which are
declared to be fundamental rights in the constitution."  Surely Swiss
courts apply fundamental rights.  Is the difference you're referring
to, that the European Court of Human Rights would handle, the
opportunity to review a law directly, rather to try than an existing
controversy?  Also, does Europe, or that portion of Europe under the
jurisdiction of the European Court of Human Rights, have an appeal
process under documents that define that jurisdiction, either for
existing "cases or controversies" or directly for review of laws?


On Sat, Dec 13, 2014 at 4:23 AM, Norbert Bollow <nb at bollow.ch> wrote:
> 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
> http://sustainability.oriented.systems/the-case-for-human-rights/
> 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.
> Greetings,
> Norbert
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