The Sociological Argument in Human Rights Doctrine

First published in French as « L’argument sociologique dans la doctrine des droits de l’homme » in Dominique Fenouillet (dir.), L’argument sociologique en droit. Pluriel et singularité, Dalloz, coll. « Thèmes & commentaires », 2015.

Abstract: 

Human rights have long been thought of as ‘natural and sacred rights’ from a universalist ‘everywhere and always’ perspective. But relativism arose right from the time of the French Revolution with Burke and Joseph de Maistre contesting this vision of ‘man’ as abstract as opposed to situated. More recently, the sociological approach with the Marxist perspective has set formal rights against real freedoms. Contemporary law has taken all these challenges into account and developed the international corpus of human rights by emphasising effective rights for everyone – ‘without distinction of race, sex, language or religion’ as underscored in Article 1 of the United Nations Charter – rights that are accessible and adaptable to the specific needs of vulnerable groups, including through ‘positive discrimination’. Far from undermining the legal idealism and universality of human rights, the sociological argument enhances it with a permanent dialectic of law and fact.

Fulltext: 

In his classic book on liberties, Jean Rivero makes a clear distinction between the different levels of analysis, recalling that:

[L]aw is a social discipline. It deals only with relations of people with other people and society. It leaves to the philosopher those aspects of the problem of freedom that are alien to its purpose. Besides, as a normative discipline, while law shares with sociology the study of the social circumstances by which freedom is formed and exercised, it contemplates those circumstances in terms of the rules that govern them.[1]

But is this not to discard legal sociology like the philosophy of law rather offhandedly, in a sort of ‘neither, nor’, in which law is dedicated to the exegesis of statutes and judgments? Not without apparent contradiction, Jean Rivero himself concludes by observing:

[T]he problems posed by liberties are in no way abstract ones; every day, the world over, they crop up in the news, sometimes in the headlines. So, in order to give the subject its true character and its full dimension, we must endeavour to grasp, through the press and in life, the facts that pertain to it and that it can illuminate. The contact between theoretical study and workaday reality is invariably useful and where liberties are concerned it is particularly necessary and fruitful.[2]

And the fact is that Jean Rivero fully integrates the historical and philosophical dimension of human rights into his study, just as he integrates the international debates and societal issues that current events throw up.

This is indication enough that, at all levels, the confrontation between theory and practice is particularly complex, being torn between a national approach and a universal perspective. One cannot speak of human rights doctrine without taking on board a sociology of international relations, in which political debates reflect differing conceptions of people and society. In this sense, human rights are not just the outcome of a mysterious dialectic between natural law and positive law, as in a narrowly French interpretation, but they are themselves a cultural phenomenon, a ‘sociological argument’, whether implicit or explicit, in the confrontation of ideological blocs, yesterday, or in the ‘shock of civilisations’ today. Doctrine cannot therefore tower above the subject-matter that it studies.

In an effort to find a guideline through this labyrinth, we can separate the scope for the sociological argument in the conception of human rights (Part 1) and the way it is taken into account in implementing human rights (Part 2), shifting from an outside perspective to an inside view.

1. THE SOCIOLOGICAL ARGUMENT IN THE CONCEPTION OF HUMAN RIGHTS

It is perhaps peculiar to the exception française to have conceived of human rights from the outset as an abstract construction, reconciling individualism and universalism,  by affecting to be the ‘lawgiver of the human race’.[3] For the Representatives of the French People in 1789, it was a question of ‘recognising and declaring’ what were ‘natural, inalienable and sacred rights’ by reminding ‘all members of the social body’ of ‘their rights and duties’. The constituent assembly of 1946 confined itself to evoking ‘inalienable and sacred rights’, while supplementing them with ‘political, economic and social rights that are particularly necessary to our times’.

From the outset, too, this ambition was denounced by the counter-revolutionaries. Joseph de Maistre was probably one of the first to use the sociological argument in discussing the Rights of Man:

Had they said The Rights of the Citizen, or man as citizen, I would understand their meaning; but I confess that MAN, as distinct from the Citizen, is a being I do not know at all. In the course of my life I have seen Frenchmen, Englishmen, Italians, Germans, Russians, etc.; I have even learnt from a famous book that one can be Persian. But I have never seen Man. If he has Rights, I care not; never shall we have to live together; let him go and exercise them in the realms of the imagination.[4]

From the beginning, the abstract utopia based on rights inherent in the human person, with no ‘condition as to nationality’ was challenged in the name of a sort of right of peoples ‘rooted’ in a history and territory, which heralds the criticisms of Carl Schmitt in The Nomos of the Earth by denouncing all forms of ‘borderless’ universalism.[5]

The opposition between ‘abstract citizen’ and ‘situated man’, to take up Georges Burdeau’s terms, was to take on very different forms depending on the period. Those debates were to enhance the definition of human rights, which had for too long been confined to abstract individualism; but they were also to run up against insuperable limits, where it is the very nature of modern society that is at issue.

1.1. Beyond abstract individualism

Marxist critique, relayed by Sartre, is familiar enough, deciphering as it does the vested interests of the French bourgeois of 1789 behind abstract idealism. In The Eighteenth Brumaire of Louis Bonaparte, Karl Marx denounces ‘the inevitable “General Staff” of “freedoms” of 1848’ in the service of ‘the public safety of the bourgeoisie’ as so many ‘police snares’ prohibiting such liberties ‘to others’. On its side, the conservative tradition rejects ‘Liberty’ in the name of liberties, franchises and privileges and rejects ‘Equality’ in favour of natural hierarchies, social classes and organised groups. Without returning to all the sociological criticisms levelled at human rights, from left or right, it is worth noting two recurring debates about the nature of human rights, in which universal principles are set against social realities.

1.1.1.

A first debate revolves around the Marxist opposition between formal liberties and real rights, which has been transposed into the separation between ‘bare liberties’, implying non-interference by the state and ‘claim rights’ requiring service provision by the state. This opposition between rights that are directly defendable in the courts, based on the state’s negative obligations, and ‘social policies’, going together with the positive obligations seems to have been materialised in the 1960s with the distinction between the two International Covenants on Human Rights, one for Civil and Political Rights and the other for Economic, Social and Cultural Rights, or regionally between the European Convention on Human Rights and the European Social Charter.

Karel Vasak sought to systematise this position with his theory of ‘three generations of human rights’,[6] with western countries having the primacy for civil liberties, socialist states having the upper hand for social rights, while the Third World nations were supposed to highlight rights of solidarity, such as the rights to peace, development and a healthy environment. This theory, which is not devoid of political after-thoughts, might be flattering in these times of ideological co-existence and persuasive in its pedagogical simplicity, but it seems to me to be above all disputable and dangerous. Intellectually, it would be hard to untangle the ‘generations’ of human rights, between 1789, 1791 and 1793 or 1795, to take just the French example. But above all, the major legal texts of 1945 and 1948 underline the universality and indivisibility of these rights around the International Charter of Human Rights by refusing to sacrifice or give precedence to any one category over another.[7]

This is the case from the earliest drafts of the United Nations Charter and in the Universal Declaration, it is fully in keeping with Roosevelt’s ‘four freedoms’, but it is also the case with the cross-references of the two 1966 Covenants and the highlighting of the indivisibility of human rights by the 1968 Teheran Declaration. Ever since, the whole dynamic of international human rights law has been to overcome this divide by underscoring the interdependence of human rights – which are all ‘real rights’ – and by reinforcing the effective character of all human rights – through the formal guarantees of the rule of law.

1.1.2.

And yet, another conceptual debate has been launched by the West, at the risk of conflating and weakening two separate fronts. At the crux of the sociological argument lies the issue of women’s rights and the rights of woman.[8]

Basically, the United Nations has long been divided between a specific approach, with the creation of a Commission on the Status of Women, which quickly became independent of the Human Rights Commission, and then the adoption of a specialised instrument, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and a transverse approach, marked by gender mainstreaming and the allowance for a gender perspective in all areas. The 1995 Beijing World Conference on Women genuinely saw the advent of an awareness of the issue, with increased effort since then at all levels. This determination has repercussions in the legal domain with the recent introduction by the Human Rights Council of a Working Group on Discrimination Against Women in Law and Practice. ‘The equal rights of men and women’ asserted in the Preamble to the United Nations Charter is thus materialised with substantial consequences in public international law as in private international law.[9] The question is raised also for the European Court of Human Rights. In a concurring opinion, Russian judge, Anatoly Kovler, after underscoring ‘the complexity of the rules of Islamic marriage’, stated:

I would like to see the European Court of Human Rights take a more anthropological approach in the positions it adopts, by “not just exploring difference, but exploring it differently” (“non seulement penser l’autre, mais le penser autrement”) (see, in particular C. Ebrerhard, Le droit au miroir des cultures – Pour une autre mondialisation, Paris, 2010). Otherwise, the Court is in danger of becoming entrenched in “eurocentric” attitudes.[10]

As had already become clear in Beijing, the struggle of Third World women is not necessarily the struggle of feminist movements. One discussion may be blind-sided by another, in which sociological arguments play their full part, with the slide from a gender perspective and the call for a ‘gender identity’.[11] This gender ideology, which is far from consensual, entails a re-reading of rights, where once the 1948 Declaration asserted that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’ and specified that ‘[m]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution’ (art. 16). The sociological argument is found in both camps, the proponents of equal rights ‘for all’ and the defenders of ‘natural anthropology’. Here again recent reforms imply diplomatic challenges and raise legal issues,[12] giving new impetus to the debate on cultural relativism.

1.2. The challenge to legal individualism

The question of collective rights remains posed in full. The French Revolution had ignored social groups, corporations and workers’ associations, leaving the individual isolated in a confrontation with the state. Trades unions have on the contrary a full part to play in the three-way operations of the International Labour Organisation, but international human rights law has long remained inseparable from a state structure in which the individual is the sole creditor of rights and the state the sole debtor. Should we not go further and move from ‘collective rights’ to ‘communal rights’ by recognising the existence of groups and communities? In this sensitive area, the sociological argument comes up against two limits; the rationale of interstate law and the weight of republican tradition, leaving our legal nationalism out on a limb.

1.2.1.

The question of the rights of national minorities was put on the back burner when a universal system of human rights was introduced after the Second World War, but it came to the fore again dramatically in the 1990s with the break-up of the Soviet bloc.[13] France has always maintained a cautious attitude in the name of the constitutional principles underpinning its conception of the nation state, making an interpretative statement to article 27 of the International Covenant on Civil and Political Rights or similar clauses in other treaties such as the Convention on the Rights of the Child. But it did contribute to the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 18 December 1992 (A/47/135) by taking care to ensure it covered only individual and not community rights, as the toughly-negotiated title indicates.

However coherent this position of principle, which makes it a ‘persistent objector’,[14] France is often in an awkward position when mandatory instruments are developed in the Council of Europe, such as the Framework Convention on National Minorities or the European Charter of Regional or Minority Languages, under pressure from the Council of Europe Parliamentary Assembly. One key question is whether the existence of national minorities depends on state recognition, or on the subjective claim of a group or community which defines itself as such, or again whether it is a sociological reality that meets objective criteria. France has repeatedly narrowed the scope by evoking ‘national minorities where they do exist’, but most international documents of the United Nations, the Organisation for Security and Cooperation in Europe and the Council of Europe are based on the idea of self-definition, with the freedom to belong or not belong that is at the crux of cultural rights. How can there not be a shift from this individual self-determination to collective self-determination?

This is the challenge national minorities pose to the interstate system, with the risk of multiplying what Boutros Boutros-Ghali called “micro-nationalisms”. Far from ensuring pluralism, co-existence and tolerance, as in large geopolitical entities this chain-reaction break-up of multinational states followed from the undertaking ‘that the ethnic, cultural, linguistic and religious identity of national minorities will be protected’, affirmed by the heads of state or government in the 1990 Charter of Paris for a New Europe. Is it sociology that is to dictate law or law that must transcend sociology? Can it not be accepted that individuals have multiple identities resulting from their membership of various communities, with the freedom to change their sense of belonging or identification and to convert and acculturate, to have dual nationality instead of being prisoners of sociological determinism, heritage or heredity?[15]

1.2.2.

While a dialectic among persons and communities remains possible in the modern state, thanks to the conciliation of individual and collective rights, it is much more difficult to take the rights of autochthonous peoples into account. There is an irreducible anthropological opposition between open and closed societies, liberal and ‘holistic’ societies. It is not just a question of relations between the individual and the group, nor even of the protection of a threatened ‘collective identity’ at the expenses of individual autonomy; it is a matter of the relations of humankind with nature and the sacred, in the ‘dreamtime’. Claude Lévi-Strauss, who had published Race et histoire in the context of the UNESCO programmes, constantly emphasised the contradictions between the universalism of human rights and cultural relativism, leading to a radical critique of human rights.[16]

In legal terms, the issues of national minorities and indigenous peoples largely overlap but the sociological perspective is quite different insofar as indigenous peoples belong to pre-colonial civilisations, as can be clearly seen in Latin America, where the indigenous peoples are usually in the majority, even if they have long been discriminated against. It is sometimes more difficult to unravel minorities and native peoples on other continents beginning with Africa and Asia. Phenomena of acculturation and migration make exclusive definitions impossible.

The United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly on 13 September 2007 (A/61/295) is careful not to give any definition. France, which held back from the negotiations, finally abandoned the use of ‘indigenous populations’, upon a decision by President Jacques Chirac, and accepted instead the idea of  ‘indigenous peoples’, without that implying the enjoyment of the right of peoples to self-determination, but simply internal self-determination within a state structure.[17]

It is probably for indigenous communities themselves first to hit upon this inevitable compromise between identity and modernity, since it cannot be determined from the outside whether ‘what has been learnt is worth what has been forgotten’. Even if the representatives of the indigenous peoples in international instances are ‘acculturated’ by definition, their participation is crucial if we are to avoid folklore and paternalism alike. It is impossible to create ‘reservations’ where quarantine is maintained to avert epidemics and the advances of the modern world. Confronted with this irreducible difference, it is in the area of the interpretation of rights, rather than their actual definition, that the debate must now be placed.

2. THE SOCIOLOGICAL ARGUMENT IN THE INTERPRETATION OF RIGHTS

Public international law has provided a theoretical synthesis around the principles of universality, indivisibility and interdependence. It is worth recalling the key formula of the Vienna Declaration and Action Programme adopted by the 1993 World Conference on Human Rights, by which a consensus was reached at a crucial date:

While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and all fundamental freedoms (I.5).

Beyond the general assertions, the entire system is aimed at fostering awareness of the diversity of material situations. That probably reflects an empirical approach, inherited from the utilitarian conception of human rights, that can be contrasted with a theoretical temptation arising from the French Revolution, invoking the major principles and ignoring the actual guarantees. Should we read into this, like Max Weber in sociology, a cultural divide between an Anglo-Saxon world inspired by Protestant ethics and a Latin world that remains marked by Roman Catholic tradition? In evoking the works of the Council of Trent, John O’Malley emphasised that ‘Luther’s discourse was relational, occasional and psychological, theirs [the schoolmen’s] logical, systematic and metaphysical’.[18] Too much abstraction makes people lose sight of realities; but too much empiricism makes them lose sight of principles. The danger is that the force of legal universalism and abstract individualism will be lost and superseded by a category-based conception of human rights that is extended in an experimental approach in which the sociological argument holds sway.

2.1. The category-based protection of human rights

The starting point of the United Nations Charter is clear in that it aims at ‘respect for, and observance of, human rights and fundamental freedoms for all’ (art. 62), but more often than not the expression ‘without distinctions as to race, sex, language, or religion’ (art. 55) is added to it like a leitmotiv. With the Universal Declaration, the enumeration becomes systematic and open-ended: ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (art. 2).[19] The ‘such as’ clearly indicates that the list is merely indicative and that any ‘other status’ could be allowed for. Furthermore, article 7 enshrines the principle of equality in law and by law: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’ On this common basis, the international law of human rights has developed in very different directions by combining the principle of non-discrimination and the generality of law at the risk of multiplying any adverse effects.

2.1.1.

The most classic perspective is that of the Universal Declaration which is extended in the parallel provisions of the two Covenants, with article 2(1) and article 26 of the International Covenant on Civil and Political Rights and article 2(2) of the International Covenant on Economic, Social and Cultural Rights. The importance of this principle is emphasised by the fact that article 4 of the Covenant on Civil and Political Rights concerning a public emergency is careful to excluded any exemption that might entail ‘discrimination solely on the ground of race, colour, sex, language, religion or social origin’. In this, the two Covenants go much further than article 14 of the European Convention on Human Rights supplemented by protocol no 12.[20] The European Union Charter of Fundamental Rights has updated the traditional enumeration by adding references such as ‘genetic features’ or ‘disability, age or sexual orientation’ (art. 21).

But little matter the terms of the enumeration, since, as a question of principle, it is any and all discrimination that is at issue. The French approach, developed under the HALDE (Haute autorité de lutte contre les discriminations et pour l’égalité) under Canadian influence, tends to objectivise such categories. Thus the leading newspapers tell us that ‘place of residence has become the 20th criterion of discrimination in French legislation’ further to a recently voted amendment.[21] Even if French law did have this category-based approach, at the risk of enshrining ideas that it seeks to counter – such as that of ‘race’, pending the deletion of the word from the Constitution – and ossifying the discriminations that it seeks to denounce, this would be to forget that because the provisions of the Covenant on Civil and Political Rights are already recognised by the courts as directly applicable in France, a plaintiff can denounce a discrimination based on any ‘other status’.[22] Moreover, the enumeration will never exhaust the list of discriminations, especially in different social contexts, with forms of rejection depending on appearance or status. The sociological approach may be useful statistically in order to ‘test’ types of discrimination, but the Rousseauist principle of equality before the law remains effective because of its generality.

The real problem is to draw a dividing line between ‘discrimination’ and ‘distinction’, in the Aristotelian logic taken up by all major courts. It is in this area that the question is raised of institutional or systemic discriminations which the general character of law can supposedly only reinforce. Should ‘compensatory inequality’ be introduced to offset abstract inequality? The discussions around affirmative action or positive discrimination are familiar enough. This is the case of quotas, with the perverse effects illustrated by the crystallisation of castes in the Indian Constitution, with a social status that is disconnected from any actual circumstances and fortune, or the situation in US universities. The deliberate policies to introduce ‘parity’ or ‘diversity’ in France follow the same rationale, undermining the principle that ‘social distinctions can be grounded on public utility alone’ and the dogma of equality in competitive examinations already torn apart by Bourdieu.

2.1.2.

Recent developments have tended to take account of ‘vulnerable groups’ by multiplying the instruments of category-based protection. It might have been thought that equal enjoyment of rights ensured for all by the International Charter of Human Rights would be sufficient. Yet the specific approach that prevailed before the enshrinement of the universality of human rights with the creation of the United Nations has continued in the context of humanitarian law with refugees, stateless persons, the wounded, the shipwrecked, prisoners of war and civilian populations.

But what is most striking is to see the development of specialised treaties in the context of the United Nations, on the margin of the two 1966 Covenants, by taking up discriminations covered by the Charter with the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the 1979 International Convention to Eliminate All Forms of Discrimination Against Women (CEDAW). To these have been added the 1989 Convention on the Rights of the Child, the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and more recently the 2006 Convention on the Rights of Persons with Disabilities.

The sociological argument has a full part to play in the implementation of these various instruments. To confine ourselves to a single example, in the Preamble to the Convention on the Elimination of All Forms of Racial Discrimination, the States Parties declare themselves ‘Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or practice, anywhere’. Thus the argument from authority, the ethical argument and the sociological argument are marshalled each in turn.

Similarly, affirmative action is taken into account, not incautiously, in article 2(2):

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

A similar provision is found in CEDAW article 4, once ‘the objectives of equality of opportunity and treatment have been achieved’. However, the adoption of ‘special measures … aimed at protecting maternity shall not be considered discriminatory’. Two rationales are at work, as when the ILO C089 Night Work (Women) Convention adopted in 1948 was challenged in 1990 by European states on the principle of non-discrimination.

Alongside the categories already covered by the basic treaties (women, children, migrants, asylum seekers, the disabled) or other international instruments (national minorities, indigenous populations), mention is also made of people who are excluded and in extreme poverty, displaced persons, the victims of armed conflicts or natural catastrophes, landless peasants, immigrants without identity papers, detainees, etc.

The fact remains that the multiplication of categories often goes with the fragmentation of procedures, with no real overview, and the danger of duplication, and worse still of ‘negative conflicts’, for neglected categories or systemic problems. Who takes care of the unemployed, elderly or retired in times of economic crisis and social dumping?

2.2. The development of human rights

Alongside a usually static, partitioned approach, full scope must be given to the dynamics of human rights that arose in 1945 when the United Nations Charter evoked ‘le progrès’ of human rights. The idea has been lost with the generalisation of the use of the English-language expression ‘the promotion of human rights’ (art. 68). But the idea of progressiveness remains very much present in the actual implementation of human rights.

2.2.1.

It appears already in article 22 of the Universal Declaration, at the hinge-point between civil and political rights and economic and social rights, going beyond liberal individualism to integrate the social context:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

There is no separating the individual from society. For the authors of the Declaration, ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’ (art. 29(1)). This balance between individual and general interest occurs again in the limitation of rights, classically stated, for example, as in the Covenant on Civil and Political Rights concerning freedom of association:

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others (art. 22(2)).

But the sociological argument leads to a progressive conception of human rights with the International Covenant on Economic, Social and Cultural Rights. Its article 2(1) enshrines the commitment of each State Party ‘to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized …’. Article 22 returns to technical assistance. Another provision relates to the specificity of ‘developing countries’ that ‘with due regard to human rights and their national economy’ may limit the economic rights of aliens (art. 2(3)). The reference to using ‘the maximum of its available resources’ implies an obligation of means for states, with budgetary decisions that must not sacrifice social rights to other political objectives.

2.2.2.

Another perspective developed recently across the entire spectrum of human rights is the emphasis on the effectiveness of rights through their implementation on the ground. As is well illustrated by the now classical triptych developed by Asbjörn Eide in the Sub-Commission on Human Rights, states have a triple obligation to respect, protect and fulfil all human rights, going beyond the old divisions between rights and claims, formal freedoms and real rights, positive and negative obligations, etc. Civil and political rights are as much in need of resources and first of human and financial resources for the proper administration of justice, as economic, social and cultural rights.

The great merit of the Committee for Economic, Social and Cultural Rights, as of the special rapporteurs on the rights to health, housing and education, for example, has been on the contrary to go deeper into the legal nature of human rights so that they do not just remain theoretical but become concrete by guaranteeing effective enjoyment. Criteria have thus arisen drawn from practice such as the ideas of accessibility, acceptability, adaptability or the idea of capabilities introduced by Amartya Sen. We find again the sociological argument underpinning the requirement of awareness, participation and empowerment or the ideas of transparency and accountability all of which are notions that have been transposed from English, even if the duty to ‘render account’ is already enshrined in the 1789 Declaration.

The same concerns are to be found in the provisions of the most recent treaties or their protocols. This is true of the 1979 Convention to Eliminate All Forms of Discrimination Against Women which opens the way to a sociological approach. The 1990 Convention on Migrant Workers distinguishes among several situations, such as that of cross-border workers and seasonal workers, but also people who are not in ‘a regular situation’. The two Protocols of 2000 to the Convention on the Rights of the Child concern ‘the involvement of children in armed conflict’, with the phenomena of child soldiers, and ‘the sale of children, child prostitution and child pornography’. But it was with the 2006 Convention on the Rights of Persons with Disabilities that the acknowledgement of specific statuses went furthest, with emphasis on ‘awareness-raising’ (art. 8), ‘accessibility’ (art. 9) and ‘habilitation and rehabilitation’ (art. 26). Often these very detailed requirements are not just legal obligations for the state but implicate all ‘stakeholders’. Thus ‘the identification and elimination of obstacles and barriers to accessibility’ should apply to ‘Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces’ (art. 9.1.a).

***

It is no longer then just a question of evoking philosophical rights that are universal because abstract, enthroned above the clouds like the judges in Henri Martin’s fresco at the Peace Palace of The Hague; it is a matter of rooting such rights in everyday life, the lives of ‘real people’, here and now. The universality and indivisibility of rights cannot be dissociated from their effectiveness. For want of a conscious and constructed systematic doctrine, the practice of human rights has shifted away from legal idealism, built on the opposition between two abstractions, the ‘individual’ and the ‘state’, under the weight of realities. But one may speak of an implied, unformed doctrine, born of a permanent dialectic between legitimacy and effectiveness.

Legitimacy is supposedly no longer to be found in ‘natural law’ which is out of reach – whether divine law that is the fruit of political theology or rational law that is reconstructed on the basis of human anthropology on a planetary scale – but to flow from social acceptance. Thus we probably come back to Georges Scelle’s conception of legal sociology, at the risk of coming up against the limits of collective progress, when groups of states evoke ‘internationally recognised rules’ so as to ossify the interpretation of human rights and refuse any advancement. It was probably Norberto Bobbio who best resolved the contradiction that arises from abandoning the mirages of natural law and rejecting the limits of positive law, when he spoke of a progressive law, inscribed in historical development and combining legitimacy and legality.[23]

In this search for effectiveness, we probably come upon the undetected potential of the social argument, which is the Bourgeois gentilhomme of human rights philosophy as it were, like Monsieur Jourdain speaking prose without knowing it. Standing against an empirical doctrine that is seemingly unaware of its presuppositions and its prejudices, is an atomised practice that is lost in casuistry, sensitive to fashion and – to tell the truth – opportunistic, with no other theory than that of its denigrators. Yet it suffices to return to the founders of modern liberalism to find the sociological argument and discover that far from weakening human rights, it responds to the irony of Marx in The Eighteenth Brumaire of Louis Bonaparte denouncing ‘passions without truth; truths without passion; heroes without heroism; history without events’.

In his introduction to Democracy in America in 1835, while evoking a sort of providentialism that filled him – much as it did Joseph de Maistre – with ‘religious dread’, Alexis de Tocqueville saw in the ‘great social revolution’ that was brewing the need for a re-foundation: ‘A new science of politics is indispensable to a new world’. The sociological argument should not be an excuse for abandoning the legal requirement for human rights, but rather a goad to thinking contingently and acting with urgency.


[1] Jean Rivero, Les libertés publiques, tome 1 – Les droits de l’homme, 1st edn (Paris, PUF, 1973), p. 15.

[2] Ibid., p. 29.

[3] See especially the colloquium of the Conseil constitutionnel on La déclaration des droits de l’homme et du citoyen et la jurisprudence (Paris, PUF, 1989).

[4] Cinquième lettre d’un royaliste savoisien, cited in Œuvres (Paris, Robert Laffont, coll. Bouquins, 2007) p. 1164. This version that long remained unpublished is fuller than the often-quoted sentence from Considérations sur la France, which refers to the 1795 Constitution, ibid. p. 235.

[5] Carl Schmitt, The Nomos of the Earth (New York, Telos, 2006).

[6] ‘Le droit international des droits de l’homme’ (1974) 140, Recueil des Cours de l’Académie de Droit International, 333-416. It is odd that the new Dictionnaire de droit international public, edited by Jean Salmon (Brussels, Bruylant, AUF, 2001) which claims to be based in practice, gives more than its due to this ‘doctrinal usage’ (sic), p. 397.

[7] See in particular Emmanuel Decaux, ‘La charte international des droits de l’homme, cohérence et complémentarité’, in colloque de la CNCDH, La déclaration universelle des droits de l’homme, 1948–2008, Réalité d’un idéal commun ? (Paris, La Documentation française, 2009) pp. 41-55. Translated as ‘The International Bill of Human Rights, coherence and complementarity’ (2012) Sorbonne-Assas Law Review, 104-117.

[8] Journée d’étude de Paris de la SFDI, Le droit international et les femmes (Paris, Pedone, forthcoming).

[9] See the resolution of the Institute of International Law adopted at its Krakow (2005) session on ‘cultural differences and ordre public in family private international law’.

[10] ECHR, Grand Chamber, Case of Serife Yigit v. Turkey, 2 November 2010.

[11] See the recent opinions of the Commission nationale consultative des droits de l’homme on the ‘gender perspective’ (22 March 2012) and the ‘concept of gender’ (11 June 2013).

[12] Hugues Fulchiron, ‘Le mariage entre personnes du même sexe en droit international privé au lendemain de la reconnaissance du « mariage pour tous »’ (2014) 4 Clunet, 1055 ff.

[13] The ephemeral renewal of works of doctrine is striking: Norbert Rouland, Stéphane Pierré-Caps and Jacques Pouymarède, Droit des minorités et des peuples autochtones (Paris, PUF, 1996); Alain Fenet, Genviève Koubi and Isabelle Schulte-Tenckhoff, Le droit et les minorités (Brussels, Bruylant, 2000).

[14] Emmanuel Decaux ‘Jus cogens, faiblesses d’une idée force’, in the dossier on ‘Minorités nationales’ of L’Observateur des Nations Unies, 1997, no 3.

[15] On these issues see Mylène Bidault, La protection internationale des droits culturels (Brussels, Bruylant, 2009).

[16] Tzvetan Todorov, ‘Lévi-Strauss entre universalisme et relativisme’ (1986) 42 Le Débat, 173 ff. And for the recent publication of conferences in Japan in the spring of the same year, Claude Lévi-Strauss, L’anthropologie face aux problèmes du monde moderne (Paris, Le Seuil, 2011).

[17] Indigenous Peoples and the UN Human Rights Systems, Fact-Sheet no 9 rev. 2, 2013.

[18] John W. O’Malley, Trent: What Happened at the Council (Cambridge MA, Belknap Press, 2013) p. 71.

[19] See the present author’s commentary in Mario Bettati and Olivier Duhamel (eds), La déclaration universelle des droits de l’homme, 2nd edn (Paris, Gallimard, coll. Folio, 2008).

[20] La non-discrimination : un droit fondamental, séminaire marquant l’entrée en vigueur du Protocole n°12 à la Convention européenne des droits de l’homme, Conseil de l’Europe, 2006.

[21] Le Monde, 18 January 2014.

[22] The same could be said of the identical principle in the Covenant on Economic, Social and Cultural Rights which is equally self-executing, even if French case law has remained timorous in this respect.

[23] See Emmanuel Decaux, ‘Norberto Bobbio et le droit international des droits de l’homme’, in Mélanges Charles Leben (Paris, Pedone, 2015).

 

Issue: 
2016