The previous chapter has analysed SCANET activities from perspectives that have produced at times a formalistic and critical description of observed practices, particularly of the identifi ed learning curriculum. This is, of course, not the sole possible description of SCANET activities; like all con-texts, they entail numerous features on which analysis could have focussed.
Had different data been explored - for example focussing more on what was said during lectures instead of on patterns of fl ow - a greatly differing portrait would have emerged. This entails nothing unique, but instead, as the possibility for absolute and exclusive description through ethnography has largely been accepted as untenable, it characterizes all anthropologi-cal research today. Yet to leave the matter without further refl ection would undermine the relevance of the observed patterns and reduce them merely into one of numerous competing interpretations. To assign this analysis with greater relevancy, it becomes necessary to explore how the other SCANET legitimate peripheral participants, its students, viewed the activities. Would they concur with the portrait presented?
Answers are twofold. In discussions during activities many students portrayed genuine enthusiasm toward SCANET activities, stating how much they appreciated the opportunity to follow lectures by its well-established and knowledgeable experts. Many students participated in more than one SCANET activity, and since participation was voluntary, had they not been satisfi ed with earlier experiences, no requirements existed for them to return.
High student satisfaction was also visible in the feedback forms requested after each event which, according to the SCANET coordinator, contained predominantly positive evaluations. Contentment with activities does not, of course, automatically mean that students disagree with the manner the
SCANET learning curriculum has been described in this analysis. The curric-ulum was likely familiar to many as they were taught by prominent SCANET experts also at their host institutions. Instead they might refrain from seeing it as a source of criticism - why is it problematic that individuals holding sig-nifi cantly more knowledge on human rights issues act as the educators while they become the recipients? This view could be accompanied by sentiments of discomfort toward suggestions that students should experiment more with expert positions; this could be something they might wish to engage in only after further studies.
However, SCANET activities also included students who expressed dissatisfaction with its learning curriculum. Common sources of complaint were the scarcity of time for individual presentations, the absence of in-depth discussions on them, and the limited possibilities for audience participation.
Many of those expressing complaints were advanced doctorate candidates holding, for example, teaching experience from their host institutions. Their criticism can be perceived as being directed primarily against the SCANET structural conception of expertise, and thus to resonate with the present analysis. Importantly, no comments were encountered that formulated the SCANET learning curriculum as particularly ill-suited for a context teach-ing human rights due to its disempowerteach-ing characteristics. Instead critical student views often refl ect allegiance to different ‘schools’ of human rights thought. These ‘schools’ have been described both in the previous chapter as well as in the Introduction through Graph 1, outlining their differences in the ontological assumptions invested in human rights. These assumptions hold direct relevance for conceptions of learning. If human rights are construed as entailing a predefi ned, absolute and universal essence, it becomes a natu-ral learning process to adopt knowledge about this essence from experts. If such an essence is questioned and human rights are construed as the product of social processes and politics, a conception of learning as adopting ready knowledge becomes irrelevant. As was mentioned, differences in ontological assumptions have also impacted the present venture, contributing to its criti-cal exploration of the observed learning curriculum.
In addition, another point of departure can be located between myself and prominent SCANET experts, namely disciplinary background. According to offi cial guidelines, listed among others in its website, SCANET offers doc-toral candidates ‘a systematically built, scientifi cally ambitious, and multi-disciplinary research education’. In practice SCANET activities are pre-dominated by the discipline of law. This is illustrated in SCANET experts´
professional experience, as was discussed in Chapter 3. Legal emphasis can
be elaborated by exploring expert academic backgrounds from the SCANET website through six disciplinary categories: law, international relations, eco-nomics, humanities, languages and other. Humanities includes anthropology, sociology, history, Latin American studies, African & Asian studies and the-ology, the disciplines mentioned in the biographies, and languages includes English and French while expert profi les entail no references to formal edu-cation in other languages. Three in fi ve SCANET experts list law as their primary academic background, compared to the two in fi ve assigned to all other disciplines (Table 16). The profi les of experts participating in SCANET activities strengthen this emphasis. Of the experts present in four SCANET activities occurring over 22 seminar days - the total number of experts was 29, of which half were visiting, half permanent SCANET faculty members - four in fi ve had a background in law, compared to one fourth in all other disciplines (Table 17).
Table 16: SCANET Expert Educational Background (n of experts =18)
DISCIPLINE % (of 19) % (of 18)
Law 11 58% 61%
IR/Pol Science 2 11% 11%
Economics
-‘Humanities’ 6 32% 33%
Languages
-Other
-TOTAL 19 100% 105%
Table 17: SCANET Experts in SCANET Activities (n of experts = 29)
DISCIPLINE % (of 30) % (of 29)
Law 23 77% 79%
IR/Pol Science 3 10% 10%
Economics
-‘Humanities’ 3 10% 10%
Languages
-Other 1 (konstvetenskap) 3% 3%
TOTAL 30 100% 103%
This chapter continues by exploring the consequences that the legal emphasis of the SCANET expert profi le causes for its activities and concep-tions of human rights knowledge. In this aim, the chapter again offers analy-sis that is likely not agreed upon by all SCANET participants. The primary reason for disagreement is construed to stem from the fact that this study treats SCANET activities as a source of data instead of a source of
knowl-edge, the latter likely being the conception of many participants. The chap-ter has two primary goals. The fi rst is to explore the process through which human rights are legalized and to examine how this process is embodied in SCANET activities. This discussion is accompanied by reference to the controversy surrounding the project of legalization, with focus again being invested on how it appears in SCANET activities. The second goal is to revisit and elaborate the systemic agency of human rights experts; to investigate how in SCANET activities experts enlarge their role from intermediaries who trans-late the abstract human rights discourse into concrete signifi cances in practical cases, to activists who, through their teaching, advocate for the expansion of the human rights regime.
This process is explored from two perspectives: through arguments of legality with which experts contribute to the ongoing efforts to legalize human rights, and through arguments of legitimacy. The latter arguments depart from the earlier observed conception of human rights knowledge as being ready, arguing instead that in certain circumstances it needs to be ‘opened up’. These arguments emphasize the authority of expert systemic agency, introducing to it what will be called a creative space. This analysis thus introduces human rights experts as activists who are motivated by underlying epistemologi-cal values. This approach differs from scholarship viewing the professional engagements of human rights bureaucrats as refl ecting solely the institutional frameworks in which they are carried out, as has been discussed by Tony Waters (Waters 2001). Yasushi Uchiyamada discusses the same through his analysis of Japanese body politics, which he describes as being character-ized by a powerful void located at its centre (Uchiyamada 2005). Michael Herzfeld talks of the social production of indifference through bureaucratic practices (Herzfeld 1992), and Annelise Riles emphasizes in her research of human rights practices how they form a ‘set of institutions, knowledge prac-tices, and artifacts thereof that internally generate the effects of their own reality by refl ecting on themselves’ (Riles 2001a, 3).
This analysis construes such approaches to offer an exaggeratedly cyni-cal interpretation of human rights expert knowledge practices. Instead, it main-tains that although there undoubtedly are self-ironic undertones in such state-ments by prominent SCANET experts as ‘I have failed to fi nd a better way to improve the world than through human rights’, such statements also convey a genuine belief in the benefi ts of the expanding human rights regime. During this study, nothing has emerged to suggest that prominent SCANET experts do not view human rights either as sacred, as has been phrased by Michael Perry (Perry 1998), or as forming a secular religion. Through the complex
relation-ship of human rights and law, this chapter attempts to analyse the knowledge practices of SCANET experts as continually refl ecting an underlying activist engagement to advance the human rights regime. To connect this analysis to Bruno Latour’s comparisons between lawyers working at the French Conseil d’état and natural scientists working in the laboratories, this analysis construes human rights experts to bear closer similarity to the latter, whose relationship to their targets of inquiry Latour characterizes as ‘passionate’. He exemplifi es this by describing the passionate exclamations of joy in instances of success and sentiments of frustration in moments of failure. Latour emphasizes how it would be absurd to expect natural scientists to present arguments contrary to their ‘beliefs’ merely if their primary fi ndings did not receive immediate favour (Latour 2004, 75-78). This, on the other hand, is a standard profession-al practice of lawyers in the French Conseil d’état who, due to the structure of proceedings, always have to prepare a primary argument and a secondary argument, its potential opposite, for hearings in case the fi rst one is rejected (Latour 2004, 86-87). This chapter explores how the passionate engagement of prominent SCANET experts toward human rights is refl ected in the SCANET learning curriculum, both through arguments of legality as well as those of legitimacy. Simultaneously it investigates what kind of sources of knowledge experts rely on while trying to expand the human rights regime through their creative space: what kind of domains provide them knowledge on the univer-sal human condition, the improvement of which is assessed as being at the core of their professional practices.
This chapter begins by observing the complex relationship of human rights and law, a constitutive, yet a largely overlooked feature of the human rights phenomenon. The concept of law has received extensive attention from socio-legal scholars who have demonstrated how, as an empirical phenom-enon, it is multi-dimensional and entails extensive cultural elements as well as those of voluntary compliance (see for example Merry 1990; Greenhouse, Yngvesson & Engel 1994; Valverde 2003). Discussions on the topic have long roots in legal anthropology, and include numerous efforts to offer a com-prehensive defi nition of universal ‘law-stuff’ (Llewellyn & Hoebel 1941, 20-27; Halme 2002). These attempts have received numerous correspondents from legal philosophers, with some of the most infl uential accounts emanat-ing from H.L.A. Hart and Hans Kelsen (Hart 1994; Kelsen 1994). Instead of elaborating this vast scholarship, the subsequent analysis focusses on the conception of law held by SCANET experts. This conception is interpreted as viewing law through a formalistic lense as being defi ned by rules, legal documents, processes, institutions, implementation, enforcement and
sanc-tions; yet it simultaneously includes an extensive interpretation of custom-ary law, jus cogens and obligatio erga omnes. Law is construed as being clearly delineated from politics, as being ‘good’ whereas politics is ‘bad’.
Global improvement of the human condition is seen to require the submis-sion of politics to international human rights law which thus ideally evolves, through the ‘domestic analogy’, to resemble national legal systems, thus properly ending the ‘rule of might’ in international collaboration. In addi-tion to SCANET experts, this concepaddi-tion is visible in much human rights scholarship and, for example, in the academic debates behind the establish-ment of the International Criminal Court (Halme 2003). It has, however, received stark criticism particularly from critical scholars who have dem-onstrated how law and politics are always intermixed (Koskenniemi 1989;
Kennedy 2004). Frequent arguments also note how the domestic analogy is unsuited to international law due to, among others, its consensual nature.
This characterization further differs signifi cantly from Sally Engle Merry’s description that human rights form a ‘lawlike cultural system’, the power of which lies more in persuasion than coercion (Merry 2006a). This chapter argues that, although this may be an accurate description of the human rights regime today, human rights experts wish to continually increase its legality, thus assigning it increasing characteristics of coercion. Yet these desires face persistent challenges, as is discussed in the following.
Human Rights and Law
When drafting for the Universal Declaration began, it soon became evident that the achievement of a binding legal instrument was politically untenable.
Scholarship describes how this ‘lowered’ ambitions as efforts were instead directed toward the adoption of a legally non-binding Declaration (Glendon 2001). This can be construed as having posed the fi rst challenge on the rela-tionship of human rights and law. During drafting efforts also another source emerged, namely the question about the suitability of law to regulate matters construed to hold human rights substance. This is visible in the report from the Drafting Committee’s fi rst session of 1 July 1947, where the UK repre-sentative Lord Dukeston states: ‘It is through the international cooperating so established that the United Nations can most effectively assist the realization of the right of all persons to work, to educate, to social security and similar social and economic rights, which cannot by their nature be defi ned in the-form of legal obligations for states in an instrument such as the International
Bill of Rights’ (United Nations 1947, 27; italics added).103 Although the legal framework around human rights has since been well established, such claims have never entirely disappeared. A different yet equally compelling challenge for the relationship of human rights and law relates to the origins of human rights, to notions that in the essential signifi cance human rights precede law.
This view surfaces in instances where legal regulation is argued as having not yet progressed to a level where all human rights have been codifi ed in legally binding instruments.
This tendency is exemplifi ed by narratives on the evolution of the human rights phenomenon: despite the three-decade gap between the legally non-binding declaration and the legally binding treaties, leaving most claims recognized today as human rights without legal articulation, no scholars argue that the rights included in the Universal Declaration were not proper human rights during this period. Contrarily, for example Paul Lauren discuss-es human rights as existing also prior to the Universal Declaration (Lauren 1998). Such notions assign human rights the dual character of rights claims discussed by Duncan Kennedy: they exist both ‘inside and outside the law’;
they are ‘either rules or reasons for rules’ (Kennedy 2002, 185). Kennedy illustrates this quality with the American Constitution. It outlines highly abstract principles such as ‘freedom of speech’ invoked to support practic-es not exclusively listed in any particular legal provisions. Yet, caspractic-es exist where Courts have wanted to protect ‘outside’ rights not explicitly articulated by the Constitution (Kennedy 2002, 186). This duality leads to circumstanc-es where rights ‘straddle’; they are ‘legal rights embedded and formed by legal argumentative practice (legal rules)’ as well as entities existing ‘prior to and outside such legal instruments as Constitutions, subsequently becoming assertions about how an outside right should be translated into law’ (Kennedy 2002, 187). These observations apply likewise to human rights, as will be discussed later through arguments of legitimacy. Next, discussion moves to consider the relationship of human rights and law from the perspective of the human rights expert community of practice.
103 It should be noted that Lord Dukeston’s performance was both highly criticized and short-lived (Glendon 2001, 44-45); thus the weight assigned to this statement should be kept modest.
Yet it demonstrates how the questions of the relationship of law and human rights were debated during the drafting of the Universal Declaration.
Legal Profi le of Human Rights Expertise
This chapter has outlined how the SCANET profi le of expertise is strongly characterized by an academic background in law. This fi nding is replicated by the profi les of two human rights treaty bodies, of which information has been available on the treaty body websites ( Committee on Economic, Social and Cultural Rights 2006; Human Rights Committee 2006). The Committee on Economic, Social and Cultural Rights has 17 experts who mention 33 dif-ferent disciplines in their biographic profi les. This suggests that an average treaty body member holds educational background in two disciplines (Table 18). Yet background in law rises as predominant, as it is mentioned in 14 trea-ty body member profi les. The next common disciplines are international rela-tions and economics, which, combined, were mentioned in 10 profi les, and humanities and languages, combined mentioned in 7 profi les. The profi les of the Human Rights Committee members reproduce these patterns, although with even greater emphasis on law: it is mentioned in 17 of 18 profi les (Table 19). International relations is again the second most prevalent discipline, this time mentioned in 11 profi les, and humanities the third most common group, receiving mentions in 6 profi les. However, in other bodies such as the Committee on the Elimination on All Forms of Discrimination Against Women, legal emphasis is less central as expert backgrounds are more varied (Merry 2006a). This is sometimes construed as problematic. The scarcity of lawyers among Committee members forms a common cause of complaint for the few lawyers, who feel that members without legal education lack skill to draft the Committee’s ‘legal’ documents, leaving this task with them. The legal scholars also complain that members without legal education lack the kind of objectivity and distance which the education provides, instead getting too emotionally involved in the issues discussed.104
Table 18: Committee on Economic, Social and Cultural Rights
FIELD % (n of disciplines = 33) % (n of experts = 17)
Law 14 42% 82%
IR 6 18% 35%
Economics 4 12% 24%
‘Humanities’ 4 12% 24%
Languages 3 9% 18%
Other 2 6% 12%
TOTAL 33 100% 194%
104 Many thanks to Jan Klabbers for discussion on this point.
Table 19: Human Rights Committee
FIELD % (n of Disciplines =36) % (n of experts = 18)
Law 17 47% 94%
IR/Pol Science 11 31% 61%
Economics 2 6% 11%
‘Humanities’ 6 17% 33%
Languages 0 0% 0%
Other 0 0% 0%
TOTAL 36 100% 200%
The emphasis of legal background was also visible, although to a lesser extent, in the drafting of the Universal Declaration: drafters included legal schol-ars such as René Cassin and John Humphrey, and key lobbyists behind the Declaration included such signifi cant legal fi gures as Judge Joseph Proskauer (Proskauer 1950; Korey 1998, 33). Yet it has been noted that ‘most of the human rights commissioners, after all, were not lawyers’. This applied as well to Eleanor Roosevelt, Charles Malik as P. Cheng who, alongside René Cassin and John Humphrey, are commonly held to be the most infl uential members of the Drafting Committee (Glendon 2001, 59, 210-21). In the following decades, probably largely due to the advances in legally binding
The emphasis of legal background was also visible, although to a lesser extent, in the drafting of the Universal Declaration: drafters included legal schol-ars such as René Cassin and John Humphrey, and key lobbyists behind the Declaration included such signifi cant legal fi gures as Judge Joseph Proskauer (Proskauer 1950; Korey 1998, 33). Yet it has been noted that ‘most of the human rights commissioners, after all, were not lawyers’. This applied as well to Eleanor Roosevelt, Charles Malik as P. Cheng who, alongside René Cassin and John Humphrey, are commonly held to be the most infl uential members of the Drafting Committee (Glendon 2001, 59, 210-21). In the following decades, probably largely due to the advances in legally binding