Human rights are now extensively codified in international treaties that enjoy widespread State ratification. The pressing challenge of today is therefore the realisation of human rights in States parties around the world. This has been a difficult task for both governments and international human rights bodies that supervise human rights compliance, which have to date typically taken a legalistic approach. Prioritising State-centric legislative measures in the implementation of human rights, while necessary to an extent, is not always the most effective method of translating human rights law into lived experience. The use of non-legal, culturally sensitive measures is typically neglected in international human rights discourse, to the detriment of implementation in societies where human rights can be seen as a foreign imposition. Dr Julie Fraser’s book Social Institutions and International Human Rights Law Implementation: Every Organ of Society, recently published by Cambridge University Press, addresses this problem by examining the permissibility of other measures of implementation and advocating culturally sensitive approaches for realising human rights. Dr Julie Fraser is a human rights lawyer with experience in both academia and practice. As an Assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University, Dr Fraser has published, presented, and taught on topics including human rights law, women’s rights, and transitional justice.
Using Islam in Indonesia as a case study, Dr Fraser demonstrates how the right to reproductive health has been successfully implemented through the central involvement of Islamic law and institutions, complemented by grassroots advocacy by Muslim women. Dr Fraser joined Assistant Editor Stephanie Triefus for a conversation about her study and its resonance for Australia’s domestic implementation of human rights.
Stephanie Triefus (ST): What were some of the barriers to worldwide human rights implementation and critiques of the human rights system that prompted you to undertake this study?
Julie Fraser (JF): Firstly, I am a practitioner and I wanted human rights realised in practice. And this was something that I wasn’t seeing – there are still seeing widespread violations despite the progress made. The European Court of Human Rights emphasises that the Convention must be interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory. This was something I connected with, the idea of rights being real. The second part was that I felt that rights lacked resonance around the world. I found from my own experiences that there was a disconnect, with the idea of rights seeming to provoke some pushback or failing to really connect with communities. In my view, human rights are wonderful things. Everyone gets education. Brilliant. Everyone gets healthcare, freedom of expression. I didn’t understand why there wasn’t more support for universal rights in places like Australia. The same in the UK, they’ve also pushed back against human rights recently. The US is very skeptical of human rights, while they love their civil rights, they’re open in their rejection of many human rights. In the Netherlands, there has been empirical research into the lack of resonance of rights too. So that was my own experience, but I saw the same thing in the literature and studies from around the world, and particularly in the Global South. In many Southern, former colonised States there is this reluctance to engage with human rights because of the colonial legacy, because of imperialism, because of the role of international law in colonisation. I don’t mean to say that rights are Western. I think there is also a claim for them from the Global South, which is what I tried to show in the book. But if you look at international law, who is included, who is excluded, it’s fairly obvious that there is this bias or this over-representation of the West. So I thought, there is a problem here with disconnect. I found that quite interesting because in parts of the Global South they reject human rights because they’re Western but then I also found that in the West, they also reject human rights! It seemed like rights were orphaned, in that no one really wanted to say, ‘yeah, they’re ours’.
ST: And in the West, human rights are polarised. They can be painted as a “lefty” thing, aside from the concept of just pure liberty and freedom, which is the US’s spin on it, but in Australia, the discourse is that if you support universal education, or housing, or refugee rights, then you support higher taxes or open borders etc and it goes along those political divides
JF: Yes. So Australia is a curious case, I think. In Australia there is a sense that ‘if it ain’t broke don’t fix it’. And for the majority of Australians, life is really good. We have a social support network. We’ve got Medicare. We’ve got education, it’s affordable. We have a strong democracy, compulsory voting etc. We’ve got good free speech. We’ve got a really good quality of life. And this is where I think we came into trouble in Australia because human rights were then somehow seen to be something only for the minority. So we’re now protecting immigrants, refugees, criminals, and Indigenous people. That was an issue because the majority of Australians were quite happy and it was then perceived to be just about giving rights to these minority groups who enjoy less popularity. And that is precisely what human rights are supposed to do – to protect minorities and vulnerable groups! It’s what is so fundamental about them.
ST: There’s also discourse about sovereignty, there is the image of rights being imposed from outside, and then in Australia on our island we’re used to kind of being left alone and not being expected to keep up with European standards.
JF: I think there are some commonalities in the sense that all states, in terms of sovereignty, tend to reject things coming from the outside. Which is a problem that international law has generally. It’s per se always foreign because it comes from this upper level that’s imposed top down. That’s a problem for all branches of international law, that they don’t enjoy the same legitimacy as other norms that are internal. This is a nice segue to the point about social institutions and how my book tries to show that because local social institutions do have inherent legitimacy, they can be a bridge to link these foreign norms that aren’t seen as domestic or legitimate or as ‘ours’ with something that already enjoys legitimacy, respect, compliance, etc. Groups of people don’t like being told what to do by an outsider – it usually doesn’t go down so well.
ST: The disconnect is interesting considering the role that Australia played in the drafting of the UDHR. And with the social institutions, what kinds of social institutions would you point to in Australia as potentially facilitating human rights implementation?
JF: My book includes a case study on religion, and religion is one of the biggest social institutions in the world. And one of the most powerful. All social institutions are powerful in that they shape and guide our behaviour. And that is why they are important for human rights, because we’re trying to get human rights compliant behaviour. If you can engage some of these social institutions that already shape behaviour, if you can link them with human rights, you can then say, okay, I’m doing this because of my religion, but this also supports human rights. Australia, I would suggest, doesn’t consider itself to be a very religious country, but I do believe that religious norms still inform a lot of our culture. So I do think religion can be used as a relevant social institution in Australia. While maybe the majority of Australians aren’t practicing Christians, I think norms of Christianity influence our society. And certainly for the communities that are religious, it is really important. The other obvious social institution in Australia is sporting clubs. I was going to say that they are totally different to religion, but sports are kind of like a religion in Australia! We’ve already got some examples of how sports can be used to promote human rights. When Cathy Freeman won gold at the Sydney Olympics, it opened up a discussion around the treatment of Indigenous people and broke some barriers in terms of discussing equality and discrimination in Australia. Since then, the AFL have started an Indigenous round and also a women’s league. There is of course lots more work to do, but AFL is now a forum for ideas like dignity and equality, which are at the core of human rights.
This interview is continued in Part II.
Stephanie Triefus is a PhD Candidate at Erasmus University Rotterdam in the field of human rights and international investment law and an Assistant Editor of the ILA Reporter.