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Tuesday, November 22, 2011

Masterclass with Professor Marti Koskenniemi

'The Politics of Human Rights’




On 14 November 2011, Professor of International Law at the University of Helsinki Marti Koskenniemi engaged with five junior members of the School of Human Rights in a ‘Politics of Human Rights’ Masterclass.  Laura Henderson, Ingrid Leijten, Gustavo Arosemena, Robert Weaver and Abel Knottnerus challenged the current Treaty of Utrecht Visiting Professor on five propositions selected from his article ‘The Effects of Rights on Political Culture’. Under the chairmanship of Professor Tom Zwart the afternoon showed an elusive discussion on the foundations of human rights.

It is not every day that law students, scholars or professionals question the footings of their study and practice: what is the meaning of rights? Many might actually feel quite uncomfortable to engage in such discussions.  How to think of a house, when debating its building stones? What is left of human rights, if one starts to challenge the meaning of rights itself? Perhaps partly because of these concerns, many scholars prefer to elaborate on the roof tiles or the colours of the curtains, but not Martii Koskenniemi. While calling jurisprudence a ‘disaster’ and technicalities boring, he brought his attentively listening public back to the foundations of human rights.

Twelve years ago, Koskenniemi had claimed in Alston’s ‘The European Union and Human Rights’ that Ronald Dworkin’s famous thesis of rights as trumps was false. Rights could never be a-historical and universal. However, nobody tended to disagree with his argument. Of course, there is always a gray zone in which politics plays a major role. Would this mean that Koskenniemi shot a dead horse, a building stone which nobody uses anymore? No, because the rights discourse, according Koskenniemi, remains to hold a separate, a relatively absolute position in relation to other legal language: ‘I attack those people that believe that rights are the instrument, the technique to protect the most important values of social goods (..) It is that ‘something’ which makes rights special that I address’. We could describe that ‘something’ as the comfort of living in a house.  

What should we do with the house? We cannot just sleep under the stars, can we? Of course not, all participants of the Masterclass appeared to agree on this.  Acknowledging its politics is not to denounce the importance of human rights. This brings us back to the colour of the curtains. Can we find a way to decide which fabric to take? It was on this question, on the criteria to distinguish between a genuine claim to rights and an improper claim to rights that the discussion evolved.

For example, Laura Henderson stressed the importance of scientific data to find out what is right for society; Gustavo Arosemena  claimed that the high values of neutrality could be replaced by ‘lower values’ like contestability and reflectiveness; and Abel Knottnerus emphasized the importance of legitimacy to discover why (state) actors accept particular interpretative outcomes of the rights discourse as legitimate.

In reaction, Koskenniemi argued that in practice no criteria are to be identified.  As in his final paragraph of ‘The Effects of Rights on Political Culture’ he leaves us with the question: ‘what does it take to develop politics in which deviating conceptions of the good can be debated and realized without having to assume that they are taken seriously only if they can lay claim to an a-political absoluteness?’  The audience saw a glimpse of his thoughts on this, when he was asked ‘to look into the coffee cup’, to share his thoughts on the future development of the politics of human rights. While arguing that the history of human rights boils down to a perpetual motion between formalism and anti-formalism, the upcoming decades will see new formalism according to Koskenniemi. Hopefully, this will just result in bright coloured curtains and heavy roof piles, instead of locks on the door, as new formalism might lead to alienation.  

Whether we envisage human rights as a house or in the metaphor of Martii Koskenniemi as our (great) grandmother, the claim is alike: human rights do not just appear out of thin air, but develop over time. So at the end of the day, or in this case the Masterclass, there is much to think, but nothing to feel uncomfortable about. We still have a house to return to. 

Posted by Abel Knottnerus

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