[Julie
Fraser
is a human rights lawyer and assistant professor with the Netherlands Institute
of Human Rights and the Montaigne Centre at Utrecht University. Her monograph further exploring this
topic is out this year with Cambridge University Press.]
The ongoing protests in the US against racial inequality in response to the killing of George Floyd have triggered both solidarity protests around the world as well as condemnation at home. However, this is not new for human rights, which have been contested since their proclamation in the Universal Declaration of Human Rights (UDHR) more than 70 years ago. However, commentators in the last decade have warned of increasing contestation of human rights as well as challenges to the institutions tasked to protect them. Examples include the election of President Trump in 2016 and the US’ withdrawal from the UN Human Rights Council, UNESCO, the Paris Agreement, and now the WHO. The former UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, criticised populist leaders including Trump, noting that “the further away we get from those historical and dreadful experiences [of WWII], the more we tend to play fast and loose with the institutions
created to prevent repetition”. Academics have also commented on the decline of
human rights, with Hopgood
arguing that the “endtimes are coming for human rights as effective global
norms”. The current protests across the US tell a different story.
The protests – as well as the many statements and
actions in solidarity – suggest that human rights are not in fact facing their
endtimes. While not necessarily using the language of human rights, protestors
are demanding justice and equality, which are two of its key principles. Not
only are individual rights-holders stepping up (and out onto the street), but
so too are other actors, including businesses
and social institutions such as religious groups and sporting clubs. For
example, Jewish
organisations, the Hellenic
Council, and Catholics
have voiced their support for racial equality in the US. The Pope
declared racism a ‘sin’ and reiterated the sacredness of every human life. Basketball
legend Michael
Jordan, along with Nike, has
pledged US$100m in support of Black communities, with other NBA players also speaking out. NASCAR issued a formal statement and the National
Football League (NFL) changed
its policy to allow players to
‘take a knee’ in protest of police brutality. As these examples show, private
actors are using different ways to support the human rights of racial equality,
freedom of speech, access to justice, and reparations for victims. Such rights
are protected in legal instruments binding on the US including the 1965 Convention
on the Elimination of Racial Discrimination and the 1966 International
Covenant on Civil and Political Rights.
I argue that these non-state actors are crucial to the
meaningful protection and promotion of human rights. While international human
rights law (including the two instruments mentioned above) casts the state as
the primary guardian of human rights,
the role of non-state actors demands attention – especially when the state
openly shirks its obligations. The UDHR
itself notes in its preamble that ‘every individual and every organ of society’
is responsible for realising human rights. Despite
the State’s centrality in international human rights law, this legal
construction was never fully aligned with practice. For example, social
institutions like families, women’s associations, and religious groups have
been providing healthcare, social security, and education for centuries. Scholarship
(including by Merry, Nyamu, and Fraser) has shown
that due to their cultural embeddedness and legitimacy, social institutions can
be highly effective promoters of human rights and providers of rights related
services. Today, the role of private actors in human rights has only increased.
Due to factors such as globalisation
and privatisation, businesses are increasingly engaging with human rights. For
example, business and human rights has emerged as its own specialised field examining
how businesses can be held accountable for their abuse of rights, as well as
how they can promote rights within their sphere of operation. Discussions last
century on voluntary Corporate Social Responsibility have developed into the
recognition that businesses have human rights responsibilities (UNGPs), and to contemporary legal negotiations on an internationally
binding treaty. While they may have mixed motivations, many businesses have
joined the call in the US for racial equality. Ben&Jerrys have long spoken
out against white supremacy and even launched a new flavour in 2019 – JusticeReMix’d – to raise
awareness. Not only are businesses voicing support for equality, but they are
also recognising their own shortcomings to date and pledging to do better. Apple’s
CEO has made a number of commitments in a letter to staff
regarding racial injustice, as did Google, including a
pledge of US$12m. Lego has pulled marketing
of its police and White House toy sets and pledged US$4m to education about
racial equality.
While becoming more visible,
such actions by businesses are not new. In the wake of President Trump’s announcement
in 2017 that the US would withdraw from the UN Framework Convention on Climate Change (Paris Agreement), numerous other
actors declared that they would continue to implement the agreement. Almost
4,000 private and public sector leaders across the US signed the ‘We Are Still In’
declaration or America’s Pledge
committing to taking action on climate change, and to ensure that the US delivers
on its climate goals. Climate change is, of course, inextricably linked with
human rights including the rights to life and to health. This is a prime
example of businesses and other private actors stepping up even when the State denounces
its own obligations. There
has also been a rise over the years of social enterprises, which are for-profit
businesses that use their profit for social purposes including human rights. An
example is Thinx, an organisation that sells
sustainable women’s underwear and runs programmes focusing on adolescent
reproductive healthcare education. Last week, they also voiced their support
for racial equality and justice, and donated to the NAACP
Legal Defense and Educational Fund. As
these further examples show, while State-centricity is a persistent norm in
international human rights law, it is increasingly a fiction in reality.
As the current mobilisation for racial equality
illustrates, there is a need to recognise the role of non-state actors
including businesses and social institutions in promoting human rights.
Polycentric approaches to human rights realisation involving a multiplicity of
actors should replace the State-centric one. The
vague human rights responsibilities on non-state actors that have been
articulated by the UDHR, the UNGPs and various UN treaty bodies need to be further
elaborated. International human rights law should include businesses and other
private actors in order for the law to better reflect and respond to practice. This
is particularly pressing when the State – like the US right now – is the human
rights detractor. Rejecting Hopgood’s
negative forecast referred to above, Toft claims that ‘the human rights regime is not only not dead,
but thriving’, and is arguably more decentralised and locally owned than
before. Today’s challenging times do not present us with the
end of human rights, but rather an opportunity to re-imagine and re-engage a
wider variety of actors on human rights.
Clearly, much more must be done to address the pervasive structural
racism in our societies and its wide-ranging detrimental consequences. Given
the persistent contestation and violation of human rights, it is necessary to
have every organ of society engaged in their realisation.
