A talk hosted by the Promise Institute for Human Rights at UCLA School of Law, and co-sponsored by the Human Rights Center at the University of Minnesota, the Center for Human Rights and Humanitarian Law at American University Washington College of Law, the Human Rights Center at UC Berkeley, the Georgetown Law Human Rights Institute, the Human Rights Institute at Columbia Law School, the Schell Center for International Human Rights at Yale Law School, the Center for Human Rights and International Justice at Stanford, and the Center for Security, Race and Rights at Rutgers.
Statement by Michelle Bachelet, UN High Commissioner for Human Rights
31 March 2021
Greetings to all of you. I'm pleased to have this opportunity to gather your ideas, and look forward to a rich and lively conversation. The views – and the efforts – of young people from every kind of background, are key as we navigate this critical moment in world affairs.
Law itself serves social functions. And you, as law students, have much to contribute. Perhaps you will become someone who not only implements the rule of law, but also shapes it. Today presents many opportunities for activism – your activism – that can benefit others.
Every major crisis is an opening for transformative change. In recent months, the long-standing fractures evident in many societies have become powerful vehicles for viral contagion and economic, social and political breakdown and tension. To my mind, the pandemic has broadly highlighted where changes need to be made and what those changes need to be.
It has forced a reckoning with injustice, inequalities and entrenched discrimination of every type, as well as environmental degradation and other issues.
These are issues we now badly need to fix. And to do this, we need law – and we therefore need you, future practitioners of law around the world.
With so many sectors of every nation's economy and society shattered by the multiple and often overlapping impacts of COVID-19, huge investments in rebuilding will have to be made. This gives every society a choice:
Struggle mightily to get back to normal – even though normal is what brought us to where we are today.
Make disorganised, partial efforts that result in even worse systems than before.
Or, use the lessons of this crisis to recover better – in ways that correct dysfunctional systems and norms, and lead to better policies and more cohesive, more resilient societies.
That was easy to say, right? But in my view, it is in fact also doable. We already have a vaccine against injustice, poverty, inequality, conflict, underdevelopment, and environmental catastrophe. It is a vaccine made up of measures we developed after previous global shocks, including two World Wars, a pandemic and financial crises.
This vaccine is called human rights.
The great body of international human rights treaties, laws and recommendations constitutes extremely practical and focused guidance to shape effective policy to prevent and address crises. Human rights norms constitute a tested and immediately actionable body of guidance for us to rebuild.
There are many challenges to the full realization of human rights. Some relate to States' resources, or legal and constitutional traditions; many involve a deficit in political will. I hope you agree with me that your role, as soon-to-be jurists, is to engage with these impediments and assist in overcoming legal hurdles, so that people's lives can be improved.
Because let's be clear: in light of what we've experienced and learned from COVID-19, we need a very extensive rebuilding of many national and global systems, practices, policies and even institutions. And you, as law-students, will need to consider what your role can be in that work.
Let me briefly outline a few of the areas for action.
Social justice, racial justice, gender justice and inequalities
The past year has been a catastrophe for people with low incomes, women and discriminated peoples and minorities across the world. For the first time in this century, we have seen an increase – a significant increase – in extreme poverty.
Women have lost income at far higher rates than men, because of the low-status and poorly protected jobs they are often obliged to take, and they have been exposed to shocking rates of violence within the home.
Workers from minority communities – who are often over-represented in customer-facing work in retail, hospitality and health-care – were deemed "essential" but treated, in essence, as though they were disposable. Even in some of the world’s richest countries, the mortality rate of people from minority groups has been triple that of the overall population. And high rates of the virus in any community creates fast lanes for contagion in all communities across society.
For children, virtually every parameter of wellbeing and future freedom has declined dramatically. Child hunger, isolation, abuse, poverty and forced marriage have sharply increased, while children's access to essential services – including education, health, nutrition and protection – has decreased. The pandemic is unravelling years of precious progress.
In terms of the right to education, personal safety, basic economic security, decent work, adequate shelter and food, and of course, the right to health, the damage that is being done to human rights is of a magnitude and speed the world has rarely seen. Despite massive spending in wealthy countries to soften the economic shocks, the poor have gotten poorer, and those furthest behind have been pushed even further behind. In the vast majority of the world, where those suffering from loss of work or business have received little or no support, these effects are magnified exponentially. Globally, more than 120 million people have fallen into extreme poverty./p>
This has been shocking – but not at all surprising. COVID-19 has reminded us that many of today's most serious social and economic problems are rooted in the past. It has shown us how deeply discrimination is embedded in national economic, social and political systems. Generation upon generation of deprivation and injustice shaped the fractures that the pandemic exploited and amplified.
We need all voices to be heard. From my own experience and from the lessons of history, I am convinced that participation is not only a right; it is also key to recovering better from this crisis.
There is significant problem in plain sight. Human rights law clearly articulates that every citizen should be able to vote, and each vote should be weighted the same. The ability to participate in decisions that affect each of us is fundamental, yet economic, social and political marginalization go hand in hand.
Although we may be accustomed to this reality, it is unacceptable – and it can be prevented. Firstly, there is no such thing as a disposable human being. We are born equal in dignity and in rights. Secondly, the detailed and achievable targets of the 2030 Agenda for Sustainable Development constitute a framework to prevent and cushion this kind of shock. International human rights law, and the detailed recommendations to each country issued by the UN human rights bodies, provide guidance that is immediately applicable and could be transformative.
If adequate protections for social, economic, civil and political rights had been in place for a much higher proportion of the world’s people, magnitudes of harm could have been averted.
There has never been so explicit and conclusive a lesson in the practical value of human rights. COVID-19 has very clearly demonstrated that inequalities and discrimination – on the basis of gender, race or any other characteristic – do not only harm the individuals who they directly target. They create shock waves which ripple across the whole of society.
To recover from this damage, the root causes must be addressed. Recent protests are again reminding us that discrimination, brutality and harassment on the basis of race or sex are deeply embedded in our societies and will not go away with a few empty gestures.
Addressing these issues is a matter of justice – it goes to the core of who we are and who we want to be. But it is also a way to supercharge our recovery. An enormous corpus of evidence demonstrates that full participation by women and members of minority communities and peoples will enormously improve the output and sustainability of any economy. It will also lessen social tensions and, in conflict and post-conflict situations, improve the chance of building a more sustainable peace.
So we need to move fast. But I think we also need to ask ourselves some deep questions – because although there has been undeniable progress over past decades, and human rights law and recommendations have been applied, still, they have not been applied enough.
Here, I want to consult you, and I'd like to encourage you to engage with this topic in the months and years ahead. What are the new coalitions that we should be building, to ensure more effective advocacy of human rights?
The climate emergency is another crucial issue for humanity now and in the future – an over-arching, comprehensive threat to human rights. And this is a make-or break year to confront it. Unless States live up to their commitments under the Paris Agreement – and even go beyond them -- to take more powerful action to reduce emissions and limit climate change, we risk the devastation of natural systems on which we all rely for health, wellbeing and survival.
In the next 12 months, our work to overcome COVID-19, and invest massively in rebuilding, will create an important opening to steer our world onto a more sustained and sustainable path. The key to devising climate policies that are effective, and effective because they are equitable and inclusive, is to apply human rights. Notably, global recognition of the human right to a safe, clean, healthy and sustainable environment can empower individuals and communities to press for actions to ensure a safe and stable climate – including through climate lawsuits.
Other human rights that are dependent on a healthy environment can also be the basis for successful litigation. For example, a landmark decision by the Dutch Supreme Court in 2019, in Urgenda Foundation v. Netherlands, required the Netherlands to undertake more ambitious climate policies in order to protect human rights from the adverse effects of climate change. The decision confirmed that based on international human rights law, governments have binding legal obligations to sharply reduce emissions in light of the “serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life… that the State has a duty to protect.”
This type of lawsuit, and ensuing legislation, is encouraging and profoundly important, with follow-on effects across whole societies. The UN's spectrum of human rights experts also contributes specific and targeted guidance for climate laws and policies. But the most effective environmental actions are those that include and are led by the people who are most affected. We all owe a great debt to the indigenous activists, men and women environmental human rights defenders, and youth movements seeking to put a stop to the unjust and disproportionate effects of the climate emergency on their communities. These voices must be more than present in climate negotiations and climate action – they must be prominent, and even pre-eminent.
One of the most spectacular takeaways from our recent lockdowns has been the extent to which participation in public life, and individual communication, now takes place online – at least for the half of the world that is connected.
Bridging the digital divide is a fundamental priority. It should be clear at the outset that we in the human rights community acknowledge and welcome the immense benefits brought by digital technologies including to human rights investigation and advocacy. Just two months ago, Berkeley’s Human Rights Centre and our Office launched ground-breaking guidance on how to collect and use digital information as evidence of human rights violations. Social media creates essential spaces for human rights defenders to link up, support each other and mobilise the public, and communicate their messages. Jobs and economic activity depend increasingly on connectivity.
At the same time, we need to recognise that digital approaches have huge potential impact on many rights and freedoms, from the rights to privacy and expression to the right to health. If they are not developed and governed with human rights at the centre, digital, data-driven tools may actually further entrench discrimination and exclusion, amplify division, and may put us on the way towards surveillance societies.
In other words, States, companies, and we, as human rights advocates, urgently need to step up action to safeguard human rights in the digital space. The same rights that people have offline must also be protected online. To deliver on its promises, the digital space must become truly open and safe for all. That requires defending the rights to freedom of expression and privacy and pushing back against online violence, cyberattacks and censorship.
These are challenges that should not be left for private companies to resolve. Even though digital platforms have improved transparency and strengthened some of their content moderation practices, there are still concerns about both the policies they are applying and the processes by which they do so. In numerous cases – some of them well-known –online content has resulted in real-life attacks against journalists, human rights defenders and minority groups. The misuse of Facebook in Myanmar to contribute to widespread attacks against a minority group is an example of just how serious the impact can be.
Yet, we should not overlook the current failure on the part of States to address the challenges posed by our digital environment. States have a duty not only to respect human rights in their own actions, but also to protect against human rights abuses by companies. They should be putting in place effective policy and regulatory measures that set the guardrails for company actions, including by requiring greater transparency and accountability. Yet few steps in that direction have been taken. Instead, we see hasty moves towards badly designed regulation that can encourage censorship and consolidate deeply undemocratic and discriminatory approaches. Such laws, quickly copied around the world, easily become new tools for State oppression.
And unfortunately, State oppression seems to be en vogue. In many countries, authorities monitor carefully what’s being said online, just to unleash troll armies against those speaking inconvenient truths, to demand companies to censor critics and artists, or even to jail, threaten and sometimes kill journalists, writers and human rights defenders.
In my view, we need to see regulations that focus on how content decisions are made. We need much greater transparency about companies' systems and rules for managing content, and the more available, accessible and effective avenues to seek redress for both harmful content and for unjustified content decisions by companies. States should equally enhance transparency and fully inform the public about their interactions with the online platforms and their requests for content removals and personal data.
I also want to make a few points about privacy. The human rights community is increasingly alarmed by the governmental or corporate misuse of vast amounts of personal data, and the impacts this can have on individuals and the democratic space. This corpus of personal data that is being harvested for unreported purposes is growing enormously as a result of the boom in online sales during lockdowns. Strengthening norms related to data protection and privacy will be key to protecting freedom of opinion and participation in democratic processes.
This vast and poorly defined area is one that your generation will need to more sharply define, shape and build on. I want to emphasise that all rights are at stake here – the accessibility of digital spaces, and the ways in which these spaces are managed, deeply impact on civil and political rights, but they are also crucial to facilitating economic and social rights, as the pandemic has clearly demonstrated. And to me, it is clear that human rights law constitutes the most solid and most extensively tested ground for regulating online expression, online surveillance, and online rights.
All of these areas are great challenges, individually; together, they could seem almost insurmountable. But we have seen, in generations past, the power of the law - and of courts applying it – to achieve major change, and to bend the direction of society towards a more just present, and with it a stronger future.
I see this in my own area of responsibility, as High Commissioner. One of my key tools has been a vehicle you will already be well familiar with, the device of “amicus curiae” interventions. While human rights work naturally involves argument as to what the law is and – maybe more importantly – what it should be, it may surprise you that only in the last 15 years have High Commissioners for Human Rights become active litigants in this capacity, in courts at international, regional and national levels. Where influential courts, wherever they are, consider important human rights issues, I want to know, and I want them to hear my own view of the matter. With the authority that my predecessors and I have been able to offer regarding the scope and proper interpretation of human rights law, I am pleased to say that – most of the time – we do end up on the right side of the case, when judgment comes down. In this way, we can help to shape the law as interpreted by the court we are arguing before. And, beyond that, we can reach much more widely to other courts who will be considering similar issues in the future.
Over 15 years, High Commissioners have advanced amicus briefs in diverse geographic regions, in common law as well as civil systems, addressing questions of civil and political as well as economic, social and cultural rights.
Here in the United States – a jurisdiction with a long and distinguished legal history in this area – we have twice advanced briefs to the Supreme Court. In Boumediene v Bush, my predecessor Louise Arbour argued for the rights, under international law, of Guantanamo Bay detainees. As you know, Justice Kennedy in that case wrote a landmark opinion holding that such detainees were within the jurisdictional reach of federal court. A few years later, my predecessor Navi Pillay stood for the argument in Kiobel v Royal Dutch Petroleum that, again as a matter of international law, corporate entities were properly liable for human rights violations attributable to them. On that issue, the Court was less sanguine, and after its hearing of the case ordering re-argument on an entirely different question. But this may give you a sense of the range of issues we have picked up.
I have continued this approach during my mandate, submitting briefs in the European Court of Human Rights on racism in police investigations; in the Constitutional Court of Ecuador on limitation of rights of Venezuelan migrants; in the Supreme Court of India on discriminatory aspects of access to citizenship; and in the Inter-American Court of Human Rights on investigation into the killing of a member of the LGBT community. Decisions as to whether to proceed - or not – with a particular case before a particular court are complex, and require careful weighing of legal, policy and political considerations, but with the same goal: to intervene where we have best opportunity to move and shape the law.
I have dwelled on this at some length because of your own roles with law clinics, where you too make the same assessments. Can we intervene in this case, for this victim? How is the court likely to perceive us? How can we craft an argument best shaped to succeed, before this court? Do we risk overstretching our position and suffering setback?
This is the work of lawyers everywhere, in your clinics and my own Office, putting the law in the service of the weak and of the vulnerable, of the overlooked and dispossessed. It is the very raison d’être of international human rights law, to be used to vindicate rights, every day, anywhere in the world.
As your careers develop, I encourage you to remain true to the ideals you are now learning, and that the law can be a tool of immense power in the hands of all looking to make our world a fairer, more just one. Or you may even consider a career in the UN, and my own Office, working to that end. It would be a pleasure to have you, your energy and your legal skill, on my own team.
Thank you, and I look forward to your questions.