On Friday 14 October, the US Ambassador to Australia, former Special Counsel to President Obama and former human rights lawyer, Jeffrey L Bleich spoke as part of a Human Rights Law Centre (HRLC) seminar. The event was hosted by Blake Dawson law firm in its Melbourne offices. The Ambassador’s talk focused primarily on civil society. In essence, both the rule of law and human rights laws were presented as ineffective – even empty – without the institutions of civil society and a culture of trust in them and, more widely, in other people.
Civil societies make laws; laws don’t make civil societies
Take the line in the middle of a road and the law not to drift across it into the path of an oncoming truck. No one refrains because there is a law. Take the unspoken norm against cutting toenails on aeroplanes. No one (hopefully) would do it because there is no law. In these examples, with which the Ambassador began, the presence of law reflects social practice, as does its absence. In the latter, the introduction of law would be lamentable, reflecting a breakdown in courtesy.
Taking a more significant example, many constitutions of the world, despite their high-minded promises of protection, are “absolutely empty”. First and foremost, it is societal bonds that protect us. Law issues from – and strengthens – social practice, but cannot simply create good practice by fiat. The first message of the Ambassador’s address was thus the necessary relationship between civil society and law.
“Trust” as the basis of the rule of law
The message was not the unimportance of human rights law, but the need for two fundamental endeavours pursued side-by-side: to generate and defend law and to generate and defend trust. This entailed a warning against an overly cynical view of social institutions – government, media, lawyers and legal institutions, unions and so on (only “lawyers” elicited a self-effacing chuckle from the audience as this was spoken). To test and challenge these institutions is one thing; to view them as inherently corrupt, resulting in a desire for them to shrink, is another.
For the Ambassador, the notion of social institutions as the problem has “never been true”. Rather, social institutions provide the foundation for a rights-respecting society. Their diminishment undermines social improvements. Thus, the strategy of attacking civil society in Afghanistan, and recently in Syria, is to attack “the very idea that people can create a better life”.
What can be done beyond the law?
Having directed attention to the importance of civil society, several suggestions were raised as to the principal goals of human rights defenders. First, a general message of support for civil society is necessary where, as in Burma, it struggles under the rule of fear. Paraphrasing Daw Aung San Sui Kyi, the imperative is to use our freedom to promote that of others (see “Please use your liberty to promote ours”). Second, there is a need to promote freedom of assembly and “civil society in cyberspace”, especially in view of the effectiveness, not only of the role of social media in the Arab Spring, but of single voices who have gained large numbers of online followers in speaking out, despite the risk of reprisal. Finally, it is essential for good governance, rule of law and economic prosperity, to support women’s participation in social institutions.
No doubt each point made, along with each recommendation, begs further questions of theory and practice; so too does the running tension between dissent and assent, contest and trust as signs of the strength of civil society. It was clear, however, that an integrated approach to civil society and law was forcefully encouraged. In this respect the speech may be understood as a restatement of, and a gloss on, (the third element of) Secretary Clinton’s speech on “the Obama administration’s human rights agenda for the 21st century” given at Georgetown in 2009. The agenda draws together the aims of human rights, democracy and development into one mutually reinforcing project.
Government, financial institutions and trust
Despite the seminar’s broad theme, the Q&A that followed focused on specific questions; namely those relating to the US non-ratification of the Convention on the Rights of the Child and how to address disability rights (an under-legislated area of human rights law). There was even a meeting request from a representative of former Guantanamo Bay detainee, David Hicks. There was, however, time for one relevant and interesting insight in response to a question on the recent Occupy Wall Street protests, a day before they became global: while doubting their “wisdom and effectiveness” (without elaboration), the Ambassador recognised the basis of the protests in the idea of betrayed trust.
The ideal of America has always been that through hard work, inventiveness and personal risk-taking, one can gain a significant reward. No one begrudges that. But when individuals gain considerable rewards – when directors of financial institutions gain through multi-million dollar bonuses or “golden parachute” redundancy packages – as a result of poor performances which involved putting others at risk, part of the trust that must underlie a strong civil society is diminished.
More information on the seminar, including photos and a copy of Ambassador Bleich’s speech, can be found on the Human Rights Law Centre website.