Human Rights as Human Rights: Generating Enforceable Human Rights Standards by Shifting the Intrastate Solution from Moral Rhetoric to Strategic Legal Discourse (Part I)

[Marissa Kardon Weber is a prosecutor in New York City and serves as a Legal Consultant for the Seychelles Truth, Reconciliation and National Unity Commission on matters regarding grants of amnesty under international human rights law. The views expressed herein are entirely her own.] 

Introduction

“This is not a tidy world of tyrannical men and victimized women, but a messier realm of oppressive social customs adhered to by men and women alike. […] laws can help, but the greatest challenge is to change these ways of thinking.” – Nicholas Kristof and Sheryl WuDunn, Half the Sky: Turning Oppression into Opportunity for Women Worldwide

This principle not only applies to gender-based discriminatory social customs, but extends more generally to practices of state oppression against the citizenry. While we can identify, trace, and assess oppressive state actions, citizens implicitly contribute in less obvious, ingrained “ways of thinking.” This “messier realm,” which thrives on internalized oppression that sullies bona fide understanding, unity, and progress, enables states to evade accountability for human rights violations under international law, even when its citizens believe they are calling for it.

If the current global political climate and the public protests that define it can teach us anything, it is the power of the masses in generating momentum for legal reform. According to experts on the intersection of social justice, human rights reform, and strategic communications, effective social justice reform requires advocates to “explain to policy leaders that human rights and tactical policy solutions are complementary rather than competing approaches.” In order to accomplish this when challenging state oppression of human rights, it is crucial for the citizenry to assess and adapt the language it uses when discussing them. This requires strategic education, participation, and communication of not only “advocates,” but the entire citizenry.

In this Article, I will argue that international legal discourse can and should be used to advance human rights, particularly in times of crisis, by framing domestic calls for reform in the context of the relevant state’s international legal obligations. I propose a four-pronged framework through which to mobilize the citizenry to push back against state oppression, and minimize its own contributions to it. This framework includes: (1) identifying where domestic-level oppression might constitute human rights violations; (2) educating itself on relevant and applicable international human rights standards; (3) developing shared frames through which to clearly and uniformly discuss legal and policy reform; and (4) as a result of reformed discussions, implementing law and policy that is recognizable under, in adherence with, and accountable to international legal standards.

I. Easing the Tension Between Domestic and International Legal Orders Through Intrastate Solutions

The relationship between international and domestic legal orders is currently characterized by Westphalian sovereignty, or the right for a state to “be left alone, to exclude, to be free of any external meddling or interference.” The right to sovereignty is counteracted by the right of sovereign states to engage, through its autonomous agency, with other states and entities in the international legal order. This engagement binds states by the international agreements they enter into, the principle of customary international law, and the rules of jus cogens. However, just because a state consents explicitly to an agreement or implicitly through state action, or to peremptory norms by its mere existence, it can nevertheless elude punishment, either intentionally or unintentionally, through how it formulates domestic law and policy. For this reason, while the Westphalian paradigm raises many interstate challenges, relevant here are the intrastate challenges that arise – how states struggle to simultaneously fulfill the requirements of their domestic legal orders and their obligations under international law.

In addressing this tension between domestic and international legal obligations, scholars suggest there are at least three ways the international legal community can directly engage with domestic policies, if states so allow: (1) strengthening domestic institutions; (2) backstopping these institutions where they fail to act; and (3) compelling these institutions to act.

While international institutions are increasingly engaging with domestic policies in these ways, the barriers and repercussions due to the principle of sovereignty are undeniable (e.g. diplomatic isolation, economic sanctions, and military force). This is one reason that it is crucial to elevate the capacity for the citizenry to directly engage with its own domestic institutions, to function in pursuit of human rights compliance. The citizenry can accomplish this most effectively through the first and third forms of direct engagement – strengthening domestic institutions and compelling them to act.

These forms of direct engagement are often employed by international institutions through embedding treaties with requirements to enact domestic legislation, which can fail if the treaty is recognized as non-self-executing, and United Nations Security Council resolutions with monitoring committees. Direct engagement by the citizenry would undoubtedly look different and require more creative efforts – one being through discourse. Discourse is the “construction of meanings and interpretations about a given policy problem.” The varying modes of discourse, often applied in conjunction, include reflective, or critiquing one’s own or collective dialogue to better understand or justify it, and strategic, employed as a transversal tool to generate intended transformation or development. Social policy and political science scholars have found that adopting shared frames, or collective ways of discussing such intended progress, in earlier stages of a policy process “set the possibilities for transformative change in the implementation phase” and, therefore, the resulting law and policy. 

These scholars discuss the successful use of strategic discourse in the context of gender equality across numerous institutional fora and levels of government. They recount an interstate example of the European Union’s shared frame on employment in its regulations concerning work-life balance. This shared frame influenced Spain’s domestic policies “by shifting them away from the frames of traditional gender roles.” They also provide an intrastate example of political actors in Poland adopting a shared frame on “family well-being” to “advance divergent objectives in childcare policies.”

By translating this strategic use of discourse into the intrastate context of legal reform on the domestic level, the citizenry can better ensure that its government’s law and policy function in pursuit of, and are accountable under, international human rights standards. This strategic use of international legal discourse is one way to bring greater coherence between the domestic and international legal orders.

II. Employing the “Strategic Discourse” Model to Strengthen Domestic Institutions and Compel Them to Act in Adherence with International Legal Obligations

The strategic discourse model can be mobilized to strengthen domestic institutions and compel them to adhere to international legal obligations. One way to apply this model is through the citizenry, to shift how it understands and discusses state conduct to ensure that it aligns with international human rights standards. In developing shared frames influenced by international human rights discourse, the citizenry can “set the possibilities for transformative change in the implementation phase.” Below I discuss a four-pronged framework that illustrates how the citizenry can push back against state oppression, and minimize its own contributions to it, by (1) identifying where domestic-level oppression might constitute human rights violations, (2) educating itself on international human rights standards, (3) developing shared frames through which to discuss legal and policy reform, and (4) implementing law and policy that is recognizable under, in adherence with, and accountable to international legal standards.

A. Step 1: Identify

States face many intrastate challenges to its compliance with international human rights obligations. These challenges are identifiable both explicitly, such as in government policy, and implicitly, in the discourse a government and its citizens employ in discussing it. Failure to comply is identifiable in instances of state oppression, or where domestic policy amounts to a violation of international human rights law. Below are familiar and highly controversial government policies that arguably amount to state oppression in the United States. It is a non-comprehensive illustration of international human rights violations and, arguably, the corresponding government policies perpetuated by both the government and/or the citizenry under differing language.

(Click here to enlarge).

B. Step 2: Educate

After identifying the parallels between international human rights standards and contravening domestic policy, and before discussing them, it is important for the citizenry to educate itself on the persistent tension between the international and domestic legal orders, specifically: (1) the international obligation that binds the state regarding a specific government law or policy; (2) what makes that obligation parallel to or reflective of the domestic law or policy or oppressive action; and (3) the language typically used while discussing the relevant international obligation.

It is important for this step to come prior to reframing how the citizenry discusses domestic law and policy. This order safeguards the citizenry from generating shared frames that might propagate generalizations of international legal obligations. It allows for shared frames that are informed by intricacies within the international human rights community. For instance, human rights law is ripe with differing interpretations, ideologies, and teachings. As a result, the language used in international human rights law might be problematic when viewed in isolation, absent context and debate. One example is the “right to health.” Given states’ varying political stances on access to health care, there are varying ideologies on what the “right to health” encompasses.  The use of such terms without, at a minimum, an understanding of current debate might do more harm than good. 

There are countless individuals who and entities that already educate themselves on international human rights law, including international lawyers, non-governmental organizations, corporations, and other civil rights and anti-government oppression advocates. However, the more educated the citizenry becomes on both the international human rights system and its own implicit biases that might unknowingly fuel oppressive social customs, the more inclusive and fruitful the subsequent dialogue and progress will be. While the participation of all voices is crucial, a good place to start might be educating the media, as their reach is incomparable, personnel at all levels of government, and all lawyers, not only those in international practice, on basic international human rights standards.

Prioritizing the citizenry’s education on the rights to which they are entitled is a necessary step toward setting “the possibilities for transformative change in the implementation phase” – to eventually communicate them intelligibly within the international legal sphere. Given the differing ideological and educative approaches within the human rights realm, educating the citizenry is no easy feat. Nonetheless, it is an essential one.