The Fallacy of Human Rights

Although philosophers such as Rawls and Locke argued the case for fundamental, inalienable rights many years ago, human rights in practice remain very much a product of the 20th century. Their need was realized during the Nuremburg trials, which historically resulted in the Universal Declaration of Human Rights in 1948.

The Declaration is notable for laying out virtually all of the rights later introduced in human rights legislation such as the International Covenant on Civil and Political Rights. This Covenant is the creation of the UN, and any member state can ratify it. That the Covenant has been ratified by 149 of the nearly 200 members of the UN should be a major signifier of the importance that individuals and states are willing to accord human rights in the aftermath of World War II and its associated horrors. Yet the bright-eyed vision of a world in which respect for individual rights is paramount is in stark contrast to the reality of the Covenant and the behaviour of its signatories.

For one of the most glaring inadequacies of the Covenant, we need look no farther than the list of member states which have ratified it. Amongst the Covenant parties we see Rwanda, Iraq, and Zimbabwe, to name but a few. These states are all notorious for appalling past treatment of citizens, and have virtually become synonymous with ethnic cleansing and genocide. In spite of this, the very international community that was established to combat such horrors did effectively nothing to stop them. The account given by Geoffrey Robertson QC of genocidal actions in African states in his book Crimes Against Humanity is both illuminating and disturbing. Whilst the barbaric treatment meted out to individuals within several regimes is unforgivable in itself, the lack of action from ‘civilized’ fellow member-states is a grave indicator of the failure of human rights law. The reason for inaction, at least in Robertson’s eyes, is what he terms the ‘Mogadishu effect’. States are terrified of action lest it make them unpopular with voters and because it may make them responsible for ending the problem.

In addition, as the US so aptly demonstrated when Nicaragua successfully claimed in the International Court of Justice that the US breached the Covenant, states can simply refuse to be bound by decisions that do not suit them. Neither the UN nor the ICJ has the power to order meaningful sanctions against a member state that acts in such a way. This, to me, is the key failing of international human rights law. Treaties such as the Covenant are drafted with noble aspirations, but are ultimately failed by the realities of international politics. With nobody prepared to enforce rights or take action to prevent abuses by other nations, rights become a meaningless mockery of all that they promise.

There is a tendency to view the European Convention on Human Rights more favourably than the Covenant. After all, the reasoning goes, all signatories to the Convention are members of the Council of Europe, and Europe is a ‘civilized group of progressive democracies’. The European Convention is closely modelled on, and heavily borrows language from, the Covenant. We may expect that the Convention will operate similarly to the Covenant, but with greater success given the perceived character of European democracies.

However, being modelled on the Covenant, the same problem of enforcement arises. Any citizen of a member state may bring a claim against any state which has wronged their human rights. Should their claim be successful the European Court of Human Rights will issue a declaration on the incompatibility of domestic law with the Convention. This importantly does not demand that the state should do anything. It merely states that the state is operating law in contravention of human rights. Failure to rectify the breach may attract condemnation from other member states, but no more substantial measure exists. Enforcement of the Convention seems to be based on state-level peer pressure and the need to save face domestically than any meaningful enforcement ability.

Perhaps the most troubling aspect of international rights law is the insignificant deterrent they provide. Individuals have brought numerous successful claims in Europe, which is an undeniably good thing. However, many of these claims should have been unnecessary in the first place. For example, the case of A & Others v Secretary of State for the Home Department ruled that it was a violation of human rights to indefinitely detain foreign terrorist suspects where deportation would result in a risk of the suspect being tortured. Detention without trial is such a self-evident breach of both the Convention and centuries of English jurisprudence that it is hard to believe the UK contemplated it in the first place. Yet not only did they do it, they granted the power to do so in legislation and derogated from the Convention especially to do so.

The Convention and the Covenant both qualify rights – for example, freedom of speech can be limited in the name of national security. States are also allowed to derogate from any right of the Convention “in times of emergency threatening the life of the nation”, which is just what the UK did to allow their law. In effect, the state is admitting that they are going to infringe rights, which must logically imply that the problem facing the nation can only be countered, in the government’s eyes at least, by ignoring human rights. This is an outstanding proposition – effectively, the jingoistic ‘war on terror’ can only be ‘won’ by ignoring fundamental freedoms.

Surely though, the limitation of a right in order to prevent terrorists from destroying other lives is self-evidently justifiable? This is deeply flawed reasoning. ‘Terrorist suspects’ denotes an important point, in that none of those detained received a trial. It is very hard to credit human rights with any degree of validity when they can be sidestepped with so little questioning. The derogation from the right to liberty still remains in force to justify the laws brought in to replace the indefinite detention provisions. At no point has the government been required to explain exactly how terrorism threatens the ‘life of the nation’, and it is unlikely any authority will ever ask this of them.

Human rights are undeniably attractive – they enshrine in law that which many of us have long assumed to be just principles for individual liberty. Human rights may well the logical progression of law. Whereas much law up until the 20th century could be characterized as guarding property rights, such as the right to own or defend property, human rights guard lawful action and existence from state intrusion. As a nation develops a system of near-universal democracy, it is inevitable that law that preserves the equality of all citizens, rather than the rights of the privileged classes, will be expected.

The current system of rights is nothing compared to what could exist. Currently, rights can be circumvented or perversely abused as governments see fit, with little accountability. Even when it comes to military actions, many states have been paralyzed into inaction by the possibility of losing domestic support. Rather than act as a fundamental international basis for fair governance, the current system seems to be little more than a shiny toy – a fantastic way to impress your peers, but one which can easily be shelved when they no longer suit you.

The rights granted under the Covenant and Convention should perhaps be of particular concern to citizens of the UK. Unlike other countries, we have no fundamental constitution to enshrine our rights. The majority of our rights instead come from ancient sources such as the Magna Carta or Bill of Rights, or from our common law. Both of these can be overridden by any government thanks to the doctrine of unlimited supremacy, so even the limited rights granted to us domestically can be legitimately rejected by any government that desires to.

Human rights laws have the potential to be one of the great reforming and equalizing forces of our time. With the power of effective, enforced international law, the world may have been spared many recent genocidal horrors. It is of course unlikely that such nations would accede to human rights treaties in the first place if they were actually likely to be enforced, and this represents the sad truth of international law. No nation will agree to law not in its interest when it has the power to decline that law. It is for this reason that we should be wary of putting our trust in our human rights. The paralyzing need to cling to notions of sovereignty prevents most states from allowing effective outside control.

Those that are fortunate enough to live in nations that to prescribe to, and enforce, human rights laws should cherish the freedoms they are granted. They are self-evident freedoms, ones that any individual would desire for themselves. Yet we should be hesitant to trust them. Much good can be done under the banner of human rights, but only when it is in the interests of a state to do so. At any time a nation feels inconvenienced by human rights law they can jettison that law in favour of their own regime. Or more perniciously, they may simply abuse rights in the name of their own interests. Truly binding international treaties are extremely unlikely to arise, save in the presence of universal pressure to accede to such law. However, that does not mean that we should not strive for such a system, nor should the rights currently granted to us blind us to the fragility of the current system. Human rights in practice are only as strong as the state allows them to be, whereas a truly effective system would see a reversal of this dynamic.

By Matthew Lambert

Copyright June 2006

Notes

Geoffrey Robertson QC’s Crimes Against Humanity: The Struggle For Global Justice was an invaluable source for the issues surrounding rights law, as is David Feldman’s Civil Liberties and Human Rights in England and Wales.

The English text of the Universal Declaration of Human Rights can be found here: http://www.unhchr.ch/udhr/lang/eng.htm

The International Covenant on Civil and Political Rights, as well as information on current signatories, can be found here: http://www.ohchr.org/english/law/ccpr.htm

The full text of the European Convention on Human Rights and Fundamental Freedoms can be found here: http://conventions.coe.int/treaty/en/Treaties/Html/005.htm