How does a right travel from the Universal Declaration of Human Rights into local legislation, and why don’t all human rights make the journey from declaration to application? What can human rights accomplish—and beyond the remit of rights, which other tools take over to realise the human rights vision of our universal equality and dignity?
Human rights speech is too often spoken in shorthand. To help set the stage for its human rights theme, The Lovepost’s managing editor Marilyn Garson spoke in depth over two evenings with Marcelo Rodriguez Ferrere and Kate Stone. Rodriguez Ferrere is an associate professor at the University of Otago’s faculty of law, specialising in constitutional law, administrative law and animal law. Stone is a public servant with a background in law, politics and international relations. She has worked and studied in the fields of human rights, constitutional law, te Tiriti o Waitangi (the Treaty of Waitangi) and Māori legal issues.
These conversations help to ground the abstract theory of rights. They explore the negotiated political space where the vision of rights can animate other solutions. In this politically stressed time, these conversations find sources of optimism in local encounters, solidarist work to uphold the vision of rights, and in the long histories of Indigenous resistance to imperialism.
Part 1: how do human rights work?
The Lovepost: Thank you both so much for being with us. Although I use rights in my own advocacy, I cannot always be precise about the way that human rights and civil or political rights operate together. Maybe you could start by distinguishing our universal human rights from our domestic, democratic or negotiated political rights.
Rodriguez Ferrere: It's a really terrific question . . . because [of] the way that we so freely talk about rights and human rights, without really interrogating what that means and what they actually are.
A right is the idea that we have the capacity to do something. It usually means that there is a duty on someone else or some other party to let us do that. So we say that there is this nexus between rights and duties. When we talk about legal rights, the right to do something usually means that someone either has to let me do that or it means that they have to give me something. When we talk about human rights, it works in a very similar way, except what we mean by human rights is that we get these rights not through a contract or by negotiating with somebody. We get them because we are human. By virtue of being human, we have this set of rights.
And [human rights], too, have duties. The right to life implies a duty on someone or some other party not to take that away from me. When someone violates my right to life, it means that they're violating their duty in some way, not to take this life away from me in a particular form.
When we talk about human rights on a domestic level . . . the New Zealand Bill of Rights Act 1990 is often our focus. It is a statement of the rights that we all have by virtue of being in this country; [the rights] that have been decided as the rights that we need to have protected, to enjoy a good life. But they aren’t an exhaustive set of rights: they're still very much negotiated.
The Universal Declaration of Human Rights, which came from the UN [United Nations] in 1948, has a bunch of different rights that don't appear within the . . . New Zealand Bill of Rights Act. The International Covenant on Civil and Political Rights, which came a bit later in the 1960s, they're very similar to the New Zealand Bill of Rights Act. But at the same time, there was a convention called the International Convention on Economic, Social and Cultural Rights. And very few of those rights appear within either the New Zealand or Canadian versions. Those rights include things like the right to education, the right to housing, and the right to social welfare.
TLP: So, even at this early stage, national authorities have done some picking and choosing between the international covenants, to decide which of our human rights they will legally protect. What guides their choices?
Rodriguez Ferrere: Yes, if we say that human rights are the rights that we all have by virtue of being human, then the negotiated rights that are protected by law in New Zealand . . . are a subset of that. Usually, civil and political rights . . . are legally protected and recognised in law.
[One] reason why New Zealand and liberal democracies, in the West at least, have been so keen on civil and political rights is because of that duty aspect. When we talk about rights recognised in law, the duty is usually the state’s. The relationship is between the state and its citizens. When the right is something like a right to freedom of expression or a right to life, what that means is that the state has a duty not to take your right to life away or not to infringe upon your freedom of expression. And it's very easy, very cost-effective for the state not to do that. They just don't do anything.
TLP: Aha. Some rights are cheaper and easier than others for states to uphold.
Rodriguez Ferrere: But a right to housing, a right to education, a right to social welfare, the state has to do stuff. And so that's why there has been traditional reluctance, I think, to recognise those rights.
TLP: With that state role in mind, where does expression fit? We feel that we have a right to speak in this country. Is it a rights issue if some people have greater access or freedom to speak than others?
Rodriguez Ferrere: The answer to that depends upon who has created that structural inequity. If . . . the state has somehow created the conditions so that some people have less access, or less capacity to speak than others, then that's a problem.
The state always has the capacity to limit rights because rights are not absolute. But they have to justify that limitation. [Take the] idea of funding that is provided to political parties. To get their message across, the state of New Zealand provides a certain pool of money that gets distributed to certain political parties . . . But if the state decided to change it arbitrarily and say, ‘We're just going to give it all to the Green Party. We just think that all the funding should go to the Green Party.’ That’s depriving people in political parties of speech because now they don't have the same access to funding as the Green Party. And it's totally unjustified. It doesn't make any sense to favour one party or the other. And so we would say that that was a breach of those political parties’ rights.
But often, people don't have the capacity to speak because they don't have the money to do so. It's nothing to do with the state. And then that starts to get a bit trickier. Because if the reason that I have less of a chance to speak than Kate Stone is that Kate has a lot more money and capacity, then the ultimate cause of that [is] the structural inequities in society that allow Kate to have more wealth than I do. In an abstract way, [the state] is the ultimate cause perhaps, but not really. It hasn't specifically enhanced Kate's capacity to speak over mine. And so my right might be less, or rather my capacity to exercise my rights might be less than Kate’s. But in the absence of the state . . . not fulfilling its duty . . . it's hard to describe that as a breach.
TLP: The presence of the state makes it a matter of rights, that’s pretty clear. What about issues that are conflicted, or attract serious blowback such that editors or gatekeepers elide or ignore them? For example, in a forthcoming story The Lovepost will document the media’s avoidance of stories about Palestinians’ rights. Can that sort of systematic avoidance become an issue of rights?
Stone: When we think more broadly from a rights framework, people would tend to talk about [state responsibilities for] respecting, protecting and fulfilling. The domestic legal framework we have in relation to freedom of expression is framed much more in terms of a duty to not infringe upon freedom of expression. But what is required to fulfil the equal right to freedom of expression? That looks quite different from what's required to just respect that right and not infringe upon us.
TLP: There’s a whole lot of political life lived in the space between refraining from doing bad things that fail to respect or protect, and actively doing a good thing that fulfils.
Stone: We might think about human rights as providing a vision for what we think is valuable–that everyone has equal access to freedom of expression. But the legal framework that we have in New Zealand may not necessarily provide a technical, legal solution for the problem of that right not being fulfilled.
The state provides funding for community media, Māori television and Māori radio, and there are some rights arguments and particularly Treaty rights arguments for Māori media. But the government is more likely to talk about that kind of funding in terms of trying to create an inclusive community, trying to enable the voices of different communities to be heard, and so on.
So you might engage with rights as a vision but not necessarily the solution.
Rodriguez Ferrere: You can envision a situation in which a state broadcaster or a publicly funded broadcaster . . . denies the rights of a particular group to speak, but allows another group to speak on a particular issue . . . They're not going to do that because we've got other frameworks of broadcasting standards and things like that. But when it comes to private broadcasters, they have far more power than any state broadcaster.
There's a good case about NewsTalk ZB, the talk-back radio station, banning two people from speaking . . . They were from a political party that wanted to speak. You could see why there would be an argument there saying, ‘Well, you're denying our platform.’ And the court said, ‘No doubt, your platform has been denied here. But because they're not the state, because they are a private broadcaster, there's no obligation on them to provide that platform. Banning you is, therefore, not a breach of the rights to freedom of expression in New Zealand because that right is only enforceable against the state.’
I think that we can take it as fact that Palestinian voices are routinely shut out of conversations, and the capacity for those issues to rise to the top is much more difficult. Mainstream media and global media [have] a problem in terms of favouring some voices over others. But whether or not that's a denial of someone's human rights, that is almost a separate question.
TLP: What I take from this is that, yes, there is a problem but rights alone are not the mechanism to solve it. We fall short at that nexus of rights and values and vision. The solution needs us to mix the vision of rights with politics and a kind of mutual responsibility rather than simply going to the state and saying fix this, please.
Rodriguez Ferrere: Totally agree.
Stone: You might talk in the language of rights, but the mechanisms you use to try to enforce and realise those rights aren't necessarily legal [ones]. So you're not always relying on the [legal] framework for the realisation. You're relying on those other things you talked about: the politics, the community.
Rodriguez Ferrere: We don't hear . . . it's not just Palestinian voices but all marginalised voices in society, those without wealth and those without power in the political system. We not only don't know about those voices, but we also don't hear them. They simply don't have a voice.
It's a leap in my mind to say, ‘State, fix this. Everyone deserves…’ I mean, you could. You can create societies in which the state does have an obligation to do that. But it's pretty inefficient in some ways, and it's really tricky to do it. And the corollary question is, do we really want the state to have that much influence? When the systemic reasons why people don't have voices are much greater than the state's responsibility, it’s difficult to see how the state could provide a solution.
TLP: It is, and as long as we're sitting back comfortably and saying, ‘Fix it, fix it’, we're overlooking the necessity of a multi-dimensional effort to make it fixable—and then to make the fix feel compelling. If we are more precise about what rights can and can't do—what the legal mechanism of rights can and can't do—we actually open up the other avenues that need to be pursued if we're going to realise the vision of universal human rights.
Rodriguez Ferrere: That’s profound, because I think that people make that mistake a lot: ‘You're breaching my rights! There's a breach of my rights!’ And it's like, ‘Yeah, probably.’ You can complain about that, I guess. And you can be justified, and you can be accurate in your complaint. But . . . legal solutions are often not the most practical.
Stone: People make this claim that they have a right and assume that that means that [their] right should be realised in its completeness. That's where we start to get into really dangerous territory because the nature of rights, for most rights, is that they are not absolute. They need to be balanced with other competing rights and interests. Therefore, to be able to realise those rights, we need to be in conversation with one another about how we balance those appropriately. But the culture that we see around rights, particularly in societies where they have strong rights that they can take to court and have realised, is that the culture becomes, ‘My rights should trump your rights. I should absolutely have this right, irrespective of its impact on other people.’ And that's really problematic.
TLP: The balance is not always easy to see. Kate and I were recently at a parliamentary event where we each had to try to speak while people were shouting really offensive, racist nonsense through megaphones over top of us. The problem wasn’t just the noise; they were acting as if denying other people’s human rights is a valid political position deserving equal respect. Please, balance that mess for me!
Rodriguez Ferrere: Yeah, it's a perfect example that I will probably use in my teaching because it is so difficult to get to an answer that I am satisfied with.
On one hand, you could say, ‘Well, they should have just shut up. And they shouldn't have had the capacity to interfere with the legitimate speech of a very solemn event.’
TLP: [laughing] I certainly thought it, but mostly not out loud.
Rodriguez Ferrere: They should have allowed you to speak. They could have had their own little counter-protest going on, but they should have done it in their own time or at least let you speak and then take turns. They should have been civil, and they were not being civil. They were being disruptive and mean. That is a statement of fact: they sound like jerks.
But the problem is, the minute that you say they should have shut up, you have to ask, ‘Well, who's going to shut them up?’ And if it was police or security or some sort of organisation or even your group taking them away and beating them up so that they couldn't speak—even if that achieved what you wanted it to achieve, it's extremely important to immediately flip it. Your group had been staging a legitimate protest against a horrendous, sort of racist diatribe that was going on on the steps of parliament, and you wanted to disrupt it because you didn't think that their views should be aired: what if people came in and beat you up?
Trying to find the right answer there is very tricky. The mainstreaming, orthodox theory about this—and it's a problematic metaphor . . . —it's this idea of a marketplace of ideas. This idea is that we should all be able to speak in a town square, and whatever we're saying, if we are convincing enough then people will listen to us. They will choose not to listen to the people that they don't like. If we applied it to this situation, the innocent bystanders would see these jerks with the megaphones and go, ‘That’s a bit weird that they’re shouting these people down, I kind of want to hear them speak. So maybe I'm going to tell these people to shut up. And maybe I'm going to try and listen, and we're going to ignore [the megaphones].’
That would be the idea that the marketplace is working out because the best ideas will float up to the top. Now, the law would say that there are no limits to that. If someone started to stop you from speaking by being violent, or if they brought out a gun and some firing into the air made people scatter, the law would say, ‘Look, no, you can't go that far. But to the extent that it's sort of legitimately disruptive and just part of the right to sort of protest’, that's [how far you can go].
TLP: If their bullying could prevent the speech of people who were handing over a petition which objects to a status quo position, well, the speech of less power would be prevented every time.
Rodriguez Ferrere: Exactly. There's a famous case in New Zealand that went to our Supreme Court, about a woman who was part of a peace group in Wellington. Valerie Morse staged a protest at the dawn ceremony on ANZAC Day [Australian and New Zealand Army Corps Day, which is meant to be] very highly patriotic, highly solemn, very quiet and respectful. Whatever, I don't really care about it but [some] people really care about it. So at the dawn ceremony, she has a megaphone, starts doing the same thing—and burns the New Zealand flag at the same time, which is also freedom of expression. [These were her] protests against war, and New Zealand troops being abroad at the time.
The state intervened at that point, and they charged her with offensive behaviour. Eventually it went all the way to the Supreme Court. The charges were dropped because it was held that the state didn't have the capacity [to limit her freedom]. Her behaviour was definitely offensive to people. But that's not the measure, because to charge her with a crime in that regard would be to chill her speech and make other people less keen on protesting, [or make them] think twice about it. The effect [of intervention] was simply too problematic. And even though it upset a lot of people—really upset people—she was given the right to do that. Now, we can probably agree with her perspective and not agree with the people that were getting really hit up about it.
TLP: But you can’t protect what you care about except by protecting what you dislike.
Rodriguez Ferrere: Exactly. It’s that yin and yang.
Break time dear readers. As you've just concluded the first part of this discussion, let's give your mind a moment to recharge—grab your favorite drink and snack, and join us for the second half of this engaging interview. Human rights can be a maze of complexity, so this break will serve as your pit stop to reflect on what we've covered so far.
Part 2: Are human rights up to the job?
Thank you both for coming back.
Stone: Thank you for having us again [laughs].
TLP: Part of the message from our earlier conversation seems to be that human rights still depend on our national willingness to negotiate some boundaries and mechanisms—indeed, our willingness to grant each other rights and equality at all. We've got to be willing to work through a process, to win some and lose some. But we are in an increasingly angry and absolute time. Is the very notion of rights up to the challenge of this time?
Stone: I think that there is value in the rights discourse and the rights framework that attaches to what's at the heart of rights— . . . the idea of equality and seeing equality in other humans. There's something about our personhood which means we recognise that other persons should be entitled to certain things like the right to life and anything that cascades down from there. So, embedded in your question is this challenge, ‘Do we recognise [these entitlements] in other people and within our society?’ Because that's the heart of having a rights framework. To the extent that we don't [recognise this], that poses a challenge to what underpins rights.
Do we see the humanity in one another and people that come from different backgrounds, different identities and so on?
TLP: I can see from your faces that the news is not entirely good.
Stone: The more optimistic response I would have is . . . my experience over recent years [in seeing] the extent of organising and building of movements . . . around me—and globally around various different kaupapa [principles]. That is at the heart of whether or not we can effectively use rights to advance the various things that we've been talking about.
I think there are serious weaknesses with the rights framework if it's not contextualised within broader movement work in organising across communities . . . Many people who benefit least from rights, or whose rights are more likely to be trampled on, don't necessarily have the resources as individuals to advance their rights. And so you need to organise, collectivise resources, and strategise around how to advance your rights as a community because, as individuals, you don't necessarily have the means to do so.
The other, possibly more fundamental point is that when you are involved in organising and movement building, you have to reach across communities to build your movement. And that means that you have to engage in compromise and look for common causes and all those things which are really fundamental to properly understand the nature of rights and how we should use rights rather than weaponising them as individuals against others.
Seeing that kind of work happening—that movement-building, organising, solidarity, alliance-building work is happening all around me—that gives me cause for optimism. If we do that work, we can also use rights effectively as a tool in that work. And as a tool in that work to try and set up against other interests that might attempt to weaponise rights.
Rodriguez Ferrere: If your question is, ‘Are human rights up to the challenge?’ My answer is, ‘by themselves, definitely not’. They're not a panacea. They haven't been a panacea because otherwise, we would be living in peace and harmony since their enactment and recognition globally. But they are a tool that can be used in collective action to give language and voice about the injustice that's going on. If you think of all the major collective action movements that have been successful in the past 60 or 70 years, they're using the language of rights even if they're not actually being upheld at the time. In the civil rights movement, for example, in the [United] States, the whole point of that was to win rights that were being denied. Homosexual law reform in New Zealand in the 1980s. Once again, that was talking about equality and the nature of rights. You can pick any sort of movement, but it's the collective action that would have been the reason for the success, not the rights themselves. They’re not self-fulfilling by themselves.
TLP: I recently came across a 1948 statement by Eleanor Roosevelt about what the drafters thought the Universal Declaration of Human Rights was going to achieve. She wrote so clearly that rights are a process, period. The Universal Declaration [of Human Rights] set that process in motion. Do you think that our current political state still falls within that process? Or does this moment shake your faith?
Rodriguez Ferrere: I disagree with the modern sort of human rights movement. I'm pretty cynical about this stuff, if I'm honest. We're fighting for the right to speak against bad-faith actors and trying . . . to get hard-won victories one step at a time. It seems almost pretty insulting when you look at Jenin [Israel’s attack on the Jenin refugee camp] and Palestine and the language. I mean, it is almost insulting . . . if you're talking about the real human rights abuses around the world, the ones that are really affecting and depriving someone of their humanity. They're in situations where the language or vision of human rights is just so far away that it almost feels a bit odd to talk about it.
And then when we are talking about it in New Zealand, we're talking about the sort of nickel-and-dime issues in terms of the right to speak, which seems so ineffectual . . . I guess, as Eleanor said, they're not magical. It's a process. They're not going to just change the world. Maybe they could be a hook, but it's hard when, in some societies, not just Palestine, but if you look in Cambodia, for example, Xinjiang in China.
TLP: I worked in Afghanistan, primarily with Afghan women, for five years. They were really holding on to this potential. For a time, at least in the cities, the vision of rights seemed to have a genuine guiding value. But I'm stumped to see its value at the moment, when they’ve just fallen off the world’s agenda. I’m looking at pictures from Afghanistan over my desk here, and I am stuck. And yet, we don't have anything better. Human rights is what we have and I don’t really feel that I have the choice to walk away from the obligation of that vision while I have the ability to act—and while people are waiting for my action.
Rodriguez Ferrere: Must be brutal just watching what's happening, Marilyn.
Stone: Just before we got home, we'd been at this talk: three wāhine [women] that had been involved with the nuclear-free Pacific campaign. And the periods they were largely talking about were the 1970s, 1980s and 1990s in New Zealand. [They were] coming at it from, principally, the United Nations Declaration on the Rights of Indigenous Peoples perspective of Māori and Pasifika, solidarity with other Indigenous peoples. They [were saying] how important it was to contextualise it in the full length of their struggles for decolonisation, to really understand the history of imperialism and how that manifests in different time periods.
If we are able to take that longer perspective, and we're able to contextualise our rights frameworks within that, we can understand that it's still in motion. It's not necessarily a stable trajectory upward toward the realisation of rights. But it doesn't necessarily mean that when we have a setback, [rights] are fundamentally flawed. Look at the resilience and continual resistance of Indigenous communities all over the world in the face of waves of different forms of imperialism. If every time they had a significant setback they just gave up, then we would have lost so many of these Indigenous communities to imperialism. But there are so many that are still so strong and continue to resist.
It’s a Western framing that . . . makes us think that if we have a setback, that must mean it's a failure. Drawing from other paradigms helps us to critique rights, to think about how they might be used more effectively by bringing other perspectives. For example, in the context of the United Nations Declaration on the Rights of Indigenous Peoples, [we can try] to think more collectively about rights, and how rights can be used more effectively to challenge power structures.
Part of what's missing when we think about rights from an individual perspective is that we're not actually identifying what the real problem is that we're trying to address. It’s usually an imbalance of power on a structural level, as opposed to just its expression in the case of an individual's experience of their rights being infringed.
TLP: I need to repeat that: there is no rights discourse without a power analysis.
Rodriguez Ferrere: The four countries, I think, that [voted against] the UN [Declaration on the Rights of Indigenous Peoples] . . . were Australia, New Zealand, Canada, and the United States. Basically, they were the ones that stood to lose the most. And by ‘lose’, I mean the challenge to existing power structures. Which is an indication of the cynicism in terms of the core ‘rights for us, but not rights for you’. And potentially also an indication of the power that they see in rights frameworks. If we do recognise the rights of collective Indigenous peoples and give proper recognition of their existence (and also perhaps their rights to self-determination), then it could really reshape the foundations.
So it kind of goes both ways. It's a real indication of cynicism, of being champions of human rights unless it doesn't suit them. But also, therefore, maybe [some recognition of] the power that they could have.
TLP: What a clear-cut illustration of both. In this time, if we want to keep trying to make change through rights, how do we defend or how do we advance that now? Because we have nothing better. That, to me, is the bottom line: show me the better idea and I'll go there.
Rodriguez Ferrere: Yeah, you're right. We don't have a clear vernacular that comes close to the nature of human rights. There's no real substitute in terms of the language that [rights] provide.
Stone: What's embedded in your question is our capacity as a society to engage in the kinds of conversations that we need to have around rights. I think that’s the major challenge. It's not particular to race. There are other framings where the same issue is live: what is our capacity as a society to engage in meaningful dialogue with people we disagree with, or [who] we think we disagree with, or [who] come at things from different perspectives or different backgrounds?
And I guess there's a broader thing: what is our democratic culture like? How do we nurture a better democratic culture in which we can actually have those conversations? Because in order to strike at the heart of what rights are about—to have honest conversations around how we should try and protect rights and how people should be enabled to assert their rights—we have to be able to have the conversations first. And I think that happens in lots of different levels of society.
Our political leaders have a lot to answer for in terms of . . . for example, all the dog-whistling around co-governance. That's a space where there's huge room for improvement. But it's also something that has to happen and can happen at the level of community, from people organising within their own communities to be able to have conversations around difficult things that are happening. We see some positive examples of that.
[Take] the recent situation in Ōpōtiki, where there was a tangi [funeral] for someone who was involved in a gang who was killed. And in the mainstream media, in the national media, there was a lot of dog-whistling around gangs, but from what you could tell from some of the more local reporting and from the response of the mayor [of Ōpōtiki David Moore], there was lots of community dialogue going on on the ground to try and address people's concerns, trying to find a way that these different communities that were having to interact in this particular situation could do so in a way that people were kept safe. It's not that that stuff isn't happening. It requires a lot of relationship-focused work that is hard to replicate and make a system of. But it's crucially important work.
Another fundamental level is education; how we educate our children and continue to educate ourselves. And that perhaps can be embedded in systems a little bit more easily than the community stuff. How do we teach our children to navigate differences of opinion? What do we teach them about what democratic participation means? Really concretely, what do we teach them about rights and what the nature of rights is and how they should think about their rights and other people's rights?
So I think there are lots of different ways in which we can improve our capacities in society to use rights in an appropriate way. And there are some examples of where we're doing that. And then there are other examples where I think we're failing to do that.
TLP: Within that, I think you've also said another thing. The mayor of Ōpōtiki, for example; he spoke so well. Perhaps we also need to go looking for the places where that quality of speech gets heard while the mainstream media seem to be increasingly playing to the crowd. And the crowd is not where this quality is happening.
Stone: Yeah, people quietly, carefully, conscientiously navigating difficult relationship issues–this isn't the kind of stuff that makes the front page.
TLP: That is a perfect place for us to close: we’ve got to go looking for it if we’re going to be part of it.
Stone: Yeah. Thank you so much for inviting us into this conversation. On both occasions. It's enabled us to think about it and talk about it, which has been really cool.
TLP: Thank you. That’s The Lovepost’s mission. We all know there are problems. Can we get serious about their solutions? Have a good evening, both of you.