The teaching of human rights law must adapt to its rampant flouting

This is undeniably a difficult time to be studying international human rights law. The rise of authoritarianism, xenophobia, war and violence against civilians by both state and non-state actors is undermining students’ confidence that a qualification in this field will have practical utility – either for the world or for their own careers.

The recent dismissal of Karim Khan, the International Criminal Court’s chief prosecutor, for alleged sexual misconduct is just the latest blow to a court that has already been heavily criticised for its lack of juridical achievements and which has had little deterrent effect on those inclined to commit large-scale crimes against civilians globally – which was one of the court’s founding purposes.

Even liberal democracies such as Australia, Canada, the US, the UK and the EU now interpret the provisions of the 1951 Refugee Convention in ways that frequently undermine the rights and safety of asylum seekers. And the responsibility to protect – which had emerged as a nascent concept and legal principle in the 1990s in the aftermath of the Rwandan genocide against the Tutsi and the mass atrocities in the former Yugoslavia – has failed to be activated by the United Nations and its members states. This leaves innocents still exposed to egregious crimes, including crimes against humanity and genocide, when their own national governments fail to protect them.

Like international law generally, international human rights law (IHRL) has never had particularly sharp teeth. It has always been subservient, both legally and practically, to national priorities; it has no independent enforcement capacity. Power remains concentrated in states – and, increasingly, in non-state militia, who prioritise their ideologies and interests and have always largely ignored IHRL with impunity. But even by those low standards, the power and influence of IHRL has reached a particular nadir.

Moreover, there is a broader political and cultural crisis of confidence in human rights as concepts and values amid the revival of a majoritarianism that violates minority rights, an increase in prejudice and discrimination and resulting hate crimes, and attacks on the integrity of democracy, including press freedom, independence of courts and the principle of equality before the law. 

Most students in law schools are enrolled in general law degrees, but many law schools have extensive resources devoted to teaching IHRL within those programmes. In addition, some schools run master’s programmes specifically in IHRL or participate in interdisciplinary master’s in human rights more generally, or in international affairs.

These specialist master’s in particular may now be less attractive to students, and it may not be possible to keep enrolment numbers at the levels seen a decade or two ago, when the likes of Serbian war criminals Radovan Karadžić and Ratko Mladić were prosecuted for their part in the Bosnian genocide. And while IHRL will likely continue to be a part of more general master’s, even here it is imperative that pedagogy and course offerings be adjusted to sustain student interest in a context where human rights are under threat legally, culturally and politically. And that starts with explicitly acknowledging that context.

Students of both law and international affairs often benefit when they study IHRL alongside subjects that situate the law and its concerns in their historical, political, sociological and cultural contexts. These include social movements, labour organising, the pursuit of international development, and human rights campaigning. That is more relevant than ever.

And while such teaching would confirm that human rights are currently swimming against a strong socio-political tide, it would also reveal that abidance by IHRL was always the exception rather than the rule. Conversely, while IHRL is currently less effective and salient as a legal tool than in past decades, it still has some capacity to generate moral and cultural commitments, mobilising people in its defence and creating a shared language and understanding of human rights. In that sense, it can still inform global politics to some degree, however limited, even as it lacks the enforceability of national laws.   

The study of IHRL also enables students to envision ways in which its values and aims can be put into practice in non-legal contexts, which may be more practical and effective in the current era. These include media advocacy, community and labour organising, education, development and political engagement.

Finally, teaching IHRL in a broader, more holistic context will also underline that its influence has waned before, only to wax again. Admittedly, it is very difficult to envisage such a resurgence in the current geopolitical climate. But if that climate is to eventually change towards greater respect for human rights it will necessitate knowledge and understanding of the practice of human rights from a range of perspectives, including the law. 

Noam Schimmel is lecturer in development practice and international and area studies at the University of California, Berkeley.