The most significant contributions of great scholars are often made after death, as reality catches up with their insights and their work is more deeply understood. I expect that this will be true of Wiktor Osiatyński, a professor of constitutional law and human rights who served for many years on the Global Board of the Open Society Foundations, and who died this month in his native Poland.
I first met Wiktor Osiatyński in 2004. Then in 2012, when I succeeded Aryeh Neier as president of the Open Society Foundations, he became one of my most active and provocative advisors. Wiktor was always ready to travel to any country to meet with anyone if it could advance the Foundations’ pursuit of justice and human rights. As a result, he was on the move on the Foundations’ behalf every year until his cancer restricted him to telephone visits.
While the memory of these visits burns bright today in the minds of those he met, Wiktor’s scholarship will shine more brightly over time, and I expect it will be his final book, Human Rights and Their Limits, that leaves the longest-lasting impression. Published in 2009, more than a year before the start of the Arab Spring and at the very start of the Obama presidency, the book was a decade ahead of its time.
Even then, Wiktor recognized the diminishing utility of human rights claims in an age when both liberal and illiberal democracies had replaced dictatorships as the most prominent violators of human rights, and he focused his attention on strategic conundrums still unresolved today. As the Harvard Law Review described his contribution at the time of publication, Wiktor had succeeded in “redefining universal rights in more pragmatic terms.”
Rereading Wiktor’s last book today, three of its arguments seem particularly striking.
First, Wiktor was not deceived by any temporary enthusiasm for human rights among one or another of the great powers. He develops this most carefully in his account of the birth of the United Nations, starting with the British and the American promises of human rights guarantees in the Atlantic Charter and the Universal Declaration of Human Rights at the height of the Second World War.
Wiktor details how this may have been a successful gambit to bring people and nations to their side in the war, but the promises were insincere, or at least short-lived. By 1944, at Dumbarton Oaks, the British and Americans agreed with the other great powers that they would oppose any meaningful protection of human rights as part of the United Nations, and this opposition was in full force a year later at the San Francisco conference of the United Nations.
For Wiktor, this cynical invocation of rights by those in power was not just a 20th century phenomenon. He saw the same temporary alignment of powerful actors with rights defining the history of rights since Magna Carta. “Powerful barons in the year 1215, the advancing bourgeoisie of the eighteenth century, and the new political elites in 1948 and 1989 all adopted the idea of rights at a time when it could foster their interests. Once they had assured access to power for themselves, they often abandoned the idea of rights.”
The most recent and most cynical of these invocations of human rights by great powers came from the U.S. administration of George W. Bush to justify the invasion of Iraq, after the threat of weapons of mass destruction proved baseless. The obvious sham in that justification signaled the end of an era, and Wiktor recognized long before the European refugee crisis or the candidacy of Donald Trump that the cause of human rights was no longer useful to these powers.
“In the United States, the war on terror has dominated the internal political agenda, pushing away civil liberties and being used to justify undue increase of unaccountable presidential power. In Western Europe, the need to deal with growing immigration and the fear of Muslim minorities has taken priority over the protection of human rights.” Most striking here is Wiktor’s realist conclusion that “[t]he present crisis of the idea of rights seems primarily related to the fact that there exists no strong power that could foster its own political interests under the banner of human rights.”
Perhaps because of his cynical view of states, the second striking argument that Wiktor makes concerns the vital role of NGOs in constitutional democracies. It is civil society, not states, that contribute most to the protection of rights. In his formulation: “The exercise of freedom and protection of rights is proportional to the strength and institutional organization of civil society.”
What makes this striking is Wiktor’s anchoring the role of civil society in the nature of constitutional protections—protections that are beyond the reach in normal circumstances of the executive and legislative branches of government. Constitutions have become the strongest vehicles for making human rights enforceable. But even when they are enshrined in constitutions, these rights can only be claimed effectively by those with access to the courts, the press, and other public forums. The rich have no need for civil society in this regard, for they can go to court to assert their rights on their own; but for everyone else, public interest NGOs play this crucial role. When rights are made enforceable through other mechanisms, such as international treaties, NGOs again play this vital role. The analogy that Wiktor makes is to the role of political parties in democratic theory.
In the nineteenth century, democratic theory accepted party systems as a necessary mediating institution between individual voters and their representation in government. Similarly, constitutional democracy should acknowledge the need for institutions without which individual rights are of limited use to anyone who is not rich and powerful …. Public interest NGOs should be elevated to similar status in the theory and practice of constitutional democracy as political parties.
Third, and perhaps most prescient, Wiktor saw the need for the human rights movement to repair the gap that had opened up between itself and the majority of the public. That gap needed to be closed, both in how human rights organizations communicate with the public, and in whose cause these human rights organizations take up. Communication had to become less legalistic, more evocative. And the movement had to embrace those left behind by economic growth in an era of globalization.
This last point would be the biggest challenge. The international human rights mechanisms remained elite institutions, as did the entire UN system. Wiktor thought it imperative that we develop a “system of global governance that would be sensitive to the needs of the poor.” Yes, there were institutions that were supposed to benefit the poor, but this was too close to humanitarianism, and not the promise of human rights. To claim rights, the poor would need real power.
As Wiktor explained it, “The idea of rights has seldom served the poor, destitute, dispossessed, and oppressed. Such people usually do not claim rights. Instead they ask for mercy, expect charity, and seek benefits from benevolent masters …. [R]ights have usually been claimed by those strong enough to demand them.”
Wiktor did not need Brexit, the Trump election, or the refugee crisis to understand how globalization had opened up a schism between human rights and people whose poverty seemed invisible to the masters of globalization. “The challenge for every advocate of democracy and human rights lies in restoring a sense of inclusion, dignity and self-respect to the millions of people who are considered ‘useless’ today.”
The human rights movement has lost precious time since Wiktor wrote about the limits of rights, and the situation today is even worse than Wiktor imagined it in 2009. Not only did he assume that President Obama would succeed in closing Guantanamo, but he assumed that the human rights movement would have closed those gaps with the public by now. Instead, those gaps seem to be yawning even wider.
It’s time to catch up with Wiktor Osiatyński. We need to recognize that the embrace of human rights by great powers is always likely to be cynical, tactical, and short-lived. That’s not a reason to avoid it, but to recognize that those moments of human rights ascendance must be leveraged by civil society to make more progress than the great powers have conceded. We also have to insist on the legitimacy of civil society organizations as independent pillars of constitutional democracy, able to call on the moral and financial support of friends worldwide. And those NGOs must themselves close the gap with the public that threatens their relevance today.
Perhaps most important, to fully realize rights one has to recognize their limits. Rights are only one instrument for embedding strong values in our governance. Politics is another, and Wiktor was increasingly aware of the danger of crowding out politics with too many rights. He considered constitutions important crucibles for rights, but he recognized that democracies are equally important containers for politics.
If human relations are reduced simply to the fulfillment of rights, he cautioned, our lives, indeed our humanity, will be greatly diminished. We would do well to heed the advice he gave his students and with which he concluded his last book: “Do not try to use rights as a universal key that will open every door in front of you. Rights are very important for humankind. Do not take part in their abuse or abet their inflation to the point that they may fall into oblivion.” He signed that advice, “Your grateful teacher,” and I, for one, count myself his grateful student.