Regarding Rights

Academic and activist perspectives on human rights

Law and Emancipation

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By Hilary Charlesworth,

Centre for International Governance and Justice

Hilary Louvain

On 21st April, CIGJ Director Hilary Charlesworth was awarded a Doctorate Honoris Causa by the Faculty of Law and Criminology at the Catholic University of Louvain. With Professors Michael Grimaldi from the Université Panthéon-Assas (Paris II) and Jonathan Simon from the University of California, Berkeley, Hilary was honoured in a ceremony based on the theme, ‘Law and Emancipation’. This is the address given by Hilary at the conferral ceremony:

Professeur Blondel, Recteur de l’Université, Professeur Van Gehuchten, Doyen de la Faculté de droit at de criminologie, Professeure Geneviève Schamps, présidente de I’Institut pour la recherche interdisciplinaire en sciences juridiques,

Colleagues and friends, I am honoured and grateful to have become a Doctor honoris causa of this celebrated university and I thank my parrain, Professor Pierre d’Argent most warmly for his generous nomination. I offer my congratulations to my co-doctorants, Professor Michel Grimaldi and Professor Jonathan Simon, and I feel fortunate to be in their company.

This ceremony has special personal significance for me because my father, Max Charlesworth, received his doctorate in philosophy from Louvain sixty years ago. In those days, Australian students wanting to undertake graduate study in any discipline would almost invariably head to the United Kingdom or to the United States. Our monolingualism and limited cultural horizons made this inevitable.

My father became interested in the Université Catholique de Louvain because it was the site of the archives of Edmund Husserl, the famous phenomenologist, and he hoped, by studying phenomenology, to escape the confines of the analytic school of philosophy prevalent in Australia at the time, heavily influenced by Ludwig Wittgenstein.

In fact, my father’s supervisor at UCL, Professor Georges van Riet, insisted instead that my father’s topic be a critique of linguistic analysis, so he was unable to escape this fate! However, my father’s time in Louvain left him with a lifelong interest in European philosophy. My parents both loved their time in Louvain and returned here many times, preserving precious friendships.

I was born in Louvain during my father’s studies, so being here today in one sense feels like returning home – although sadly I have never been able to claim a Belgian passport! I am delighted that two members of the Lagrand family, who were our neighbours in Rue du Parc all those years ago, and their husbands, are here today.

The theme of this ceremony is ‘Droit et émancipation’ and I wanted to consider the relationship between the law and emancipation in my field of international law.

It is often assumed that law is essential for emancipation, indeed that it is the surest path, but in fact this relationship is often complex and fraught: we know that law can be used oppressively, and that its apparent neutrality and objectivity can reinforce particular power relationships.

I recall being frustrated as a law student in the 1970s because legal education seemed to consist simply in learning masses of technical and grindingly boring rules, without any attention to their political context or impact.

It was exciting, then, in my final year to encounter international law, a subject that could not be detached from politics. Its development and its application were deeply influenced by geo-politics.

 At the same time, international law held out a shimmering emancipatory promise. It offered a language that appeared to transcend national boundaries, using the vocabulary of universality and international justice.

Perhaps the high water mark of this was the development of international human rights standards at the end of the Second World War, particularly in the Universal Declaration of Human Rights of 1948, setting out a base line of rights belonging to all people.

 In this sense the protection of human rights offered a modern utopian vision. But just as Thomas More indicated exactly 600 years ago, ‘utopia’ is by its nature elusive, promising change but not quite delivering.

In the years since 1948, scholars have begun to question the forms of emancipation offered by international human rights law. For example, scholars from the third world have argued that these standards are largely Western in orientation and that economic and social rights, such as the rights to food, housing and health, are given lower priority than civil and political rights.

My own interest has been in the gendered assumptions of much of the human rights canon. Feminist scholars have contended that women’s lives have been regularly ignored in the development of human rights standards and that these principles often reinforce structural inequalities.

So I think we must be attentive to the limits of law, and we should not assume that it is necessarily connected to justice. This means cultivating a critical and questioning approach to legal standards.

The theme of droit et emancipation has special resonance here in Belgium in the aftermath of the terrible recent attacks in Brussels. As we have seen, the law alone cannot bring safety and security. Indeed, if laws are seen to be unjust, or focussed on particular communities, they can deepen insecurity.

Above all, international law provides a framework for the articulation of certain demands and interests. This can sometimes empower civil society in significant ways. For example in the struggle for independence in Australia’s closest neighbour, Timor-Leste, a tiny, powerless group, the Timorese resistance movement, was able eventually to prevail over the powerful Indonesian army. In this case the international legal language of self-determination won out politically over the language of territorial integrity.

This suggests that international law can be one thread in a tapestry of effective regulation, of changing the course of events. But the thread can break if too much weight is placed on it alone, and its strength depends on being woven with other types of controls.

The principles of international law do not themselves resolve problems: rather they allow us to make certain arguments. So, international lawyers have considerable power in shaping the way problems are identified, categorised and resolved at the international level. They are not neutral detached players, but active participants in intensely political and negotiable contexts.

Responsibility for dealing with social and economic inequalities rests with all of us. It is not an area that we should simply abandon to the governments of the world, imagining that we have no power or clout and no right to weigh in and have our say.

The importance of taking a stand on equality and justice is captured well, I think, by Seamus Heaney, the Irish poet who won the Nobel Prize for literature, in his wonderful poem, ‘Weighing In’ and I would like to finish with his words:

Do me a favour would you, just this once?

Prophesy, give scandal, cast the stone.

Two sides to every question, yes, yes, yes …

But every now and then, just weighing in

Is what it must come down to ….

As lawyers, then, we should use the law to weigh in, to take a stand on matters of justice and inequality, while also acknowledging the limits of the law and indeed its capacity for injustice.

Allow me to conclude with my profound thanks to UCL. I will always cherish my association with this great institution.

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