Public Space: The Journal of Law and Social Justice
Vol 4 (2009): W(h)ither Human Rights?
Public Space Special Edition: ‘W(h)ither Human Rights?’ Preface The 2008 Australian and New Zealand Law and Society Conference brought together socio-legal scholars, activists and practitioners to reflect on ‘W(h)ither Human Rights?’. Held at the University of Sydney, 60 years to the day after the adoption of the Universal Declaration of Human Rights, the conference sought to expand upon conversations already underway about the direction of human rights activism and scholarship beyond the beginning of the 21st century. This issue of Public Space showcases a selection of the papers presented on this theme. Seizing on this important milestone, the 2008 LSAANZ Conference brought together a range of international and domestic academics, legal practitioners, human rights activists, students and independent scholars to critically address the current state of human rights, in both theory and practice. The conference was sponsored by the Sydney Law School and the School of Social and Political Sciences, University of Sydney. The University of Western Sydney Faculty of Law provided funds to assist the conference convenors. Human rights is indeed an apt focus for the interdisciplinary field of socio-legal studies, which has its empirical, theoretical and methodological bases both in law and in the humanities and social sciences more broadly. Law and society studies take a variety of forms but have as their central object the study of legal ideas, institutions and practices in their social, historical, cultural, political and economic contexts. These papers share a vision of human rights discourse as both a practical tool to combat oppression and as an aspirational move towards more inclusive societies based on solidarity and our common humanity. At the same time, they address disparate issues of law and justice. In ‘Law and Liberty in a Time of Climate Change’, Nicole Rogers addresses the catastrophic implications of anthropogenic global warming. In this provocative piece, she argues that the human rights impact of an strong, even authoritarian approach to combating climate change (in her words, waging a ‘war’ on climate change) would be preferable to the human fallout which will result from our present ‘business as usual’ approach which contributes little to respond to this global emergency. In ‘The Globalisation of Women’s Rights Norms’, Charlotte Skeet considers how the apparently universalist rhetoric around equality rights can advance ‘orientalist’ and patriarchal discourses in relation to who women are and how their rights may be realised. She argues that such discourses may hinder implementation of women’s rights, especially for women who are ‘other’, and that this is particularly evident in relation to women’s rights to freedom of expression, the manifestation of religious freedom and rights to participate in culture. With a more domestic focus, Penny Weller’s article, ‘Human Rights and Social Justice: The Convention on the Rights of Persons with Disabilities and the Quiet Revolution in International Law’ considers human rights protection at the culmination of the Australian government-appointed national public consultation on a federal charter. Penny reflects on the innovations which are embodied in the newest major human rights instrument, the Disability Convention: the proactive civil society engagement which led to its adoption, and the renewed efforts to see as truly interdependent civil and political rights, on the one hand, and economic, social and cultural rights, on the other. She wonders aloud how the Australian legal system will be transformed to truly give effect to Australia’s new international obligations in this area. In a similar vein, Clive Harfield considers to what extent policing in England and Wales can now be characterised as embracing human rights, a decade on from the enactment of the Human Rights Act 1998 (UK) in the United Kingdom. Harfield chronicles the immediate challenges which appear to threaten full acceptance of human rights protection within policing culture. Finally, Richard Sawyer and Tom Tian examine the reforms to sexual assault law introduced in New South Wales in 2007, which expand the crime of sexual assault to encompass objective liability (archetypally, a situation where the accused believed their sexual partner was consenting but where that belief was not reasonably held). Sawyer and Tian argue that this move, while intended to address low conviction rates for sexual assault and to provide greater justice for victims, may in fact have the result of re-focussing jury attention on the complainant’s behaviour. They posit, instead, a novel tort of negligent sexual assault as a device to begin a broader conversation about more innovative schemes for achieving a just response to victims’ harm while keeping intact defendants’ rights to be judged on the basis of their culpability. Clearly, these contributions span global and domestic contexts, touching on issues as diverse as discrimination, criminal law, religion and the environment. Nevertheless, there are certain preoccupations which underpin the concerns that the authors raise. First, they illustrate the major policy challenges facing almost every nation in the world at the end of the first decade of the 21st century, such as climate change and post-9/11 terrorism. It is clear that no one nation can claim to have no work to do in relation to human rights. And further, a number of nations face similar challenges to those of others. Second, these articles seek a more sophisticated deployment of human rights instruments in domestic policy frameworks. In them we see a distinct shift of attention away from the substantive content of human rights norms to the procedural issues involved in the implementation or actualisation of these norms on the ground. There is a sense, 60 years after the adoption of the UDHR, that the major challenges lie beyond the articulation of human rights standards and instead in how to effectively embed human rights in public policy. The submissions to this special edition suggest that this is no easy task. Third, read together, these contributions expose the ongoing tensions around human rights theory and the pragmatic realisation of human rights goals. These tensions underlie the work of scholars and practitioners alike. Who may speak about human rights discourses with authority? If international lawyers, policy analysts, globalisation and international relations scholars have claimed expertise in the past, it is arguable that that era is gone. At this point in time, it is clear that authority to speak and write about human rights is no longer the preserve of a small and confined group of scholars. The various authors – some academic, some practitioner - whose articles are included in this special edition nod to the multitude of voices speaking about human rights in the current era. In this cacophony of voices about human rights, there is currently underway a battle for the ‘soul’ of the human rights ‘corpus’, as Professor Ratna Kapur described in her keynote address to the Conference.* Sixty years after the adoption of instruments forming the foundation of international human rights law, it has become apparent that human rights can be articulated as an emancipatory project, but can also be, itself, a site which perpetuates exclusion and oppression. The value of human rights discourse and law will continue to be subject to contestation in Western liberal societies, as elsewhere, and we hope that this issue of Public Space is a productive intervention in this debate. Laurie Berg and Arlie Loughnan Sydney, November 2009 * See also Ratna Kapur, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’ (2006) 28 Sydney Law Review 665, 687.