The Human Rights Council should become the international arena where governments compete to show how to implement human rights most effectively, how to strengthen the rule of law, how to achieve social justice, where they display their best practices to the world. Competition in human rights performance is a noble goal. Hence the Human Rights Council should become the preeminent forum where governments elucidate what they themselves have done and are doing to deliver on human rights, a ”catwalk of innovation” in good-faith implementation of pledges, and in adherence to a generous culture of human rights characterized by expansive interpretation of human rights treaties and a commitment to the inclusion of all stakeholders.
What the Human Rights Council must not be is a politicized arena where gladiators use human rights as weapons to defeat their political adversaries and where human rights are reduced through restrictive interpretations.
Governments like to give lip service to the rule of law. But this much extolled rule of law is not the rule of legalism and positivism, but a culture of respect for the general principles of law that underlie and sustain the entire edifice of law, including the principles of good faith, transparency and accountability. Law is not an end in itself, nor an immutable code, but rather a man-made instrument to achieve justice, including social justice. Hence law must not be understood as absolute or perfect, but rather as a tool to achieve justice in a particular context, time and space. It is not blind mathematics, dura lex sed lex, not narrow, inflexible submission, but a holistic concept of justice that serves mankind and does not enslave the individual. The concept of the rule of law has been distorted through the instrumentalization of law to create and maintain privilege, to maximize profits, to keep what has been wrongly obtained. We need a change of mind-set and the readiness to see the rule of law as a commitment always to use laws, treaties, protocols and regulations ethically and responsibly. This entails recognition of the need for control and revision so as to continuously respond to the needs of society and every human being.
The rule of law does not mean acceptance of unjust laws or laws that necessarily bring about unjust consequences. The rule of law does not mean the blind application of existing legislation but requires instead flexibility and a culture of continuously revising and adjusting rules to achieve the ultimate purpose of serving human dignity through equity, order and predictability. The rule of law is not narrow pedestrian positivism, but the use of law for an ethical purpose. Otherwise we are taken hostage by the Roman syndrome summum jus, summa injuria (Cicero), whereby law is only a tool of the powerful to oppress the weak, i.e. law for purposes of injustice, an antinomy in itself, contra bonos mores and hence invalid.
© Alfred de Zayas