Spindle Law Interviews: Olivier De Schutter
December 15th, 2011 by Laura Bergus
Olivier De Schutter has been the UN Special Rapporteur on the Right to Food since May 2008. He currently is teaching human rights and EU law at Columbia University, as well as at the Catholic University of Louvain, and at the College of Europe (Natolin). Between 2002 and 2006, he chaired the EU Network of Independent Experts on Fundamental Rights, a high-level group of experts which advised the European Union institutions on fundamental rights issues. Since 2004, and until his appointment as the UN Special Rapporteur on the Right to Food, he was the General Secretary of the International Federation of Human Rights (FIDH) on the issue of globalization and human rights.
Mr. De Schutter’s most recent book is International Human Rights Law (Cambridge Univ. Press, 2010). He received his Ph.D from the University of Louvain and LL.M from Harvard Law School.
Spindle Law: When and why did you decide to pursue a career in international human rights?
Olivier De Schutter: I have always seen the study of law as a tool to promote social justice. My interest in human rights stems from my conviction that life is interesting, provided we change the world we inhabit, rather than leaving it as it is. In addition, I spent most of my youth in developing countries, including India and Rwanda, and I have been deeply moved by the extreme poverty and inequality I witnessed there. There are images you can’t erase from your mind when you see them as a boy or a teenager.
SL: Who are your professional mentors in your field?
ODS: Philip Alston, now at New York University, is a towering figure, and a reference for all who work on economic and social rights. He combined his scholarship with an involvement in the UN human rights system, since the early stages of his professional career. At Harvard University, I was also influenced by the Critical Legal Studies movement. Roberto Unger, Duncan Kennedy, David Kennedy, all contributed to shape my views about law as a tool that could be bent for achieving a just world. The understanding of law I was introduced to then was empowering. Before entering Harvard, I felt that as a lawyer I would be a servant of the law, and I was torn between my professional ethos—what Gerry Frug might call the temptation of bureaucracy—and my commitment to justice. That tension was replaced by a much more fruitful dialectic between the body of rules we have at our disposal, and the specific situations we apply them to. In the mode of pragmatism, which is the greatest contribution America made to philosophy, legal rules in my view should be seen as provisional, and as having to be permanently tested and revised on the basis of their results. This is why I now work with scholars that come from pragmatism and focus on social institutions that promote collective learning: Charles Sabel, at Columbia Law School, is the most innovative thinker in this direction.
SL: As United Nations Special Rapporteur on the Right to Food, you are charged with a very broad mandate to promote the rights of adequate food and freedom from hunger on an international scale. How would you explain the day-to-day work of your office to a person unfamiliar with these issues?
ODS: I present regular reports to governments on different themes that relate to the realization of the right to food at the national, regional and international level. The reports are presented and discussed in two fora: the UN General Assembly in New York, and the Human Rights Council in Geneva. Governments then deliberate on the recommendations contained in the reports, and they identify which actions they recommend.
I also do three country missions each year. These missions, of about two weeks each in duration, allow me to cover the range of obstacles to the realization of the right to food in the country concerned, and to encourage a dialogue on those issues between the government and civil society organizations. Beyond that, I convene expert meetings and consultations with stakeholders, I deliver conferences, I assist governments at their request to identify solutions to combat hunger. I contribute to shape the international discussion on how to contribute to food security, and my specific contribution is to insist on accountability, participation, and non-discrimination, as key principles that define an approach grounded in the human right to adequate food.
SL: The United States has not ratified the International Covenant on Economic, Social and Cultural Rights (one of the treaties on which the right to food is based). Why? And, do you have any concrete recommendations for Americans wishing to alleviate right to food problems within the United States?
ODS: The idea behind the right to food is simple: we have failed to end hunger using the traditional recipe that saw hunger as a technical problem, requiring only that we produce more. We’ve failed because we’ve underestimated the need to empower people and hold governments accountable. This realization has developed over decades, including through work by Amartya Sen in the 1980s. In 1996, we had a pivotal moment at the United Nations World Food Summit in Rome: for the first time the idea of the right to food was identified as central to achieving success against hunger and malnutrition, and governments requested that human rights bodies develop the normative concept of the right to food. Until then, the concept was mostly just a slogan, seen as abstract and vague—sympathetic, but not useful. Since then, the idea became operational. It is increasingly seen as essential to fighting hunger: unless you increase political pressure on governments, unless you ensure those in need participate in identifying the solutions to the obstacles they face and play an active role in monitoring progress, nothing will change. This is a core idea of the right to food.
But you are correct that the United States remains reluctant to accept obligations based on the right to food, although it is a right that is found in Article 25 of the Universal Declaration of Human Rights. Why is this? Probably because of the American constitutional tradition that sees human rights as “negative” rights—rights against government—not “positive” rights that can be used to oblige government to take action to secure people’s livelihoods. Indeed, so embedded is this in the American constitutional culture that the concept that social and economic rights are real rights is generally not accepted. While human rights to health, education, social security or food are guaranteed to a certain extent through legislation, they are still seen as suspect. The protective role of government is denounced as paternalistic and even, following Freidrich Hayek, as paving the way for totalitarianism: such rights could empower courts against the Executive in ways perceived as undemocratic.
Of course, I disagree. Real freedom can only be achieved when individuals are shielded against the most serious exclusions caused by the market. Rights have been invented precisely because majorities can act abusively, failing to respect the needs of minorities and the underprivileged. And the fact that the United States has ratified the 1966 International Covenant on Civil and Political Rights, which it joined in 1992, but has not ratified the equivalent covenant for economic and social rights that was adopted internationally that same year, is to me an anomaly. The concept of economic and social rights is not un-American. In his famous State of the Union address of 1944, Franklin Delano Roosevelt forcefully articulated the idea of a “Second Bill of Rights,” covering basic social rights as an indispensable complement to the civil liberties listed in the Bill of Rights.
SL: How did your legal education prepare you to serve in your current role at the UN?
ODS: Any problem as complex as hunger requires that we mobilize not just legal tools, but also, in this case, development economics, agronomics, or nutrition and public health. Legal education teaches you how to frame an argument. It teaches analytical precision; and the diplomatic jargon is more accessible to lawyers than to others. But the rest must be self-taught.
SL: What would you identify as the greatest advancement in human rights law during your career? Has this legal advancement been realized?
ODS: My career in human rights began in the early 1990s and progress has been achieved on many fronts since then. In fact, with the fall of the Berlin Wall, human rights were allowed to expand globally at an unprecedented speed, testing in many respects the capacity of the regional and international human rights systems to cope with this expansion. Advances made in the 1990s culminated with the trial of Augusto Pinochet, which illustrated the power of universal jurisdiction over international crimes, and with the establishment of the International Criminal Court, on which agreement was reached in 1998 and which came into force in 2002. Over the past decade, a significant development has been the strengthening of human rights imposed on companies, or in the areas of international trade or investment—but it remains an unfinished battle.
SL: You teach at law schools in Europe and in the United States. How are these experiences similar? And different?
ODS: There is an important gap that can be easily explained by the differences between student profiles: to attend law school in Europe, you don’t need a college degree, and law students are therefore younger, less well-trained in social sciences, and they have fewer interesting questions because, in the vast majority of cases, they don’t have professional experience yet. The spirit of inquiry that is entertained in US law schools in the classroom is difficult to replicate in Europe.
SL: What advice do you have for law students or new lawyers seeking a career promoting human rights?
ODS: The field is highly competitive: there is nothing more satisfying in life than to espouse a profession that is at once intellectually demanding and socially useful. My advice is therefore to be persistent and yet flexible. Persistence means that you should not be discouraged if your first attempts to enter the field fail, or are disappointments. It takes time to find the dream job in the area, and you stumble repeatedly on the way. Flexibility means that you must accept at first to work in difficult conditions, with a meager salary or even no salary at all. But that’s a way to learn, and to gain the professional experience in the field that, later, employers—whether international organizations or non-governmental organizations—will highly prize, and which allow you to distinguish yourself from other candidates.
Tags: Charles Sabel, Columbia, David Kennedy, Duncan Kennedy, Gerry Frug, human rights, hunger, ICESCR, Philip Alston, pragmatism, right to food, Roberto Unger, United Nations
