This Easter weekend I want to discuss human rights. You might ask what prompted this desire to wander into the minefield that the subject of human rights has become. I recently heard Baroness Helena Kennedy QC, the distinguished civil liberties lawyer, deliver a lecture on the subject at the University of Bedfordshire where I am an Honorary Fellow. But before I report on her theme let me briefly address the history.
Human rights were not even part of the language until at least the fourteen century. Magna Carta, whose eight hundredth anniversary we will celebrate next year, was more about establishing that the King was subject to the Rule of Law, a concept only established six centuries later in France by cutting off his head. Nevertheless the French and American Revolutions did establish certain rights even if they were not really universal. The Americans, inspired by Thomas Paine’s The Rights Of Man
, famously declared their independence by saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
while simultaneously denying the most fundamental of all rights, that of liberty, to millions of human beings living and working in their country. It was nearly a century before the 13th
amendment to the Constitution was ratified making slavery illegal.
The concept of universality, that is they apply everywhere, and egalitarianism, that is they apply to all, were not established until the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly on 10th
December 1948, meeting in Paris. The experience of the Second World War, and particularly the Holocaust, had been so ghastly that the international community vowed never to allow atrocities like those of that conflict to happen again. The UN Charter called for an international bill of Human Rights but the Commission, chaired by Eleanor Roosevelt, took two years in the drafting. The draftees included representatives from all the permanent members of the Security Council and they consulted widely with leading figures such as Mahatma Ghandi. They sought to reconcile the differing views of East and West, Democracies and Communist nations, and finally produced a document that was signed by 50 nations including pre-revolutionary China. Eight nations abstained but none dissented.
Hernán Santa Cruz of Chile, member of the drafting sub-Committee, wrote:
“I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing – which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality. In the Great Hall…there was an atmosphere of genuine solidarity and brotherhood among men and women from all latitudes, the like of which I have not seen again in any international setting.”
is elegant and remarkably concise and in its preamble said “it is essential…that human rights should be protected by the rule of law”
but I doubt if any nation has put all of these rights into national statute. They include what might be regarded as natural rights, just by being born, but also social, economic and political rights. Thus while Article 1 states that all human beings are born free and equal , Article 25 states that “everyone has the right to a standard of living adequate for the health and well-being of himself and his family”,
a more difficult concept to bring into law.
The doctrine has developed that such rights cannot be cherry picked. At the World Conference on Human Rights in 1993 the Vienna Declaration and Programme of Action stated “All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”
This makes sense as people need political and legal rights in order to enforce social and economic rights. It is therefore somewhat disquieting to see which countries were elected by the General Assembly on 12 November 2013 to make up the UN Commission on Human Rights until 2016. They are
But we have been dividing up these rights from the beginning. The 1950 European Convention on Human Rights (ECHR) that the UK helped to draft only contains civil and social rights. While the UK sought to comply with its intentions it was only brought onto the UK statute books in 1998. All 47 member states of the Council of Europe have now signed the Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. This is one of those things that are often misunderstood by many of the British public who, misled or misinformed by the media, think that it is our membership of the European Union that means we have to enforce such laws.
Helena Kennedy is a passionate believer in human rights. She points out that none of the signatories to the UDHR had clean hands. The US still had Jim Crow laws, Britain and France their empires, the USSR the gulags. The UDHR was not a binding resolution but intended as a direction of travel. It declared that people had these rights, not as citizens but as human beings. It decoupled the idea that law controls, rather it empowers. She traces a line on that direction of travel through the independence struggles in former colonies, the US civil rights movement and then Northern Ireland. She cites the work of Amnesty International and Human Rights Watch in promoting the cause and holding governments to account.
She comes from a poor part of Glasgow and her early work as a civil liberties lawyer were often cases of domestic violence. She worked hard to make the law available to people from her own background. She later saw miscarriages of justice because we lowered standards in our dealings with suspected Irish terrorists. This leached into the system and affected the police. The Bridgewater Three were wrongly convicted of murder after police tortured a suspect and forged his confession. Helena was also involved in the Guildford Four appeal and the Balcombe St case where the defendants instructed their lawyers to inform the police that innocent people were serving sentences for crimes that the Balcombe St gang had actually committed but no action was taken for many years.
Her practice is now international. She has recently worked in Iraq and observes that the rule of law is essential in a functioning democracy. Iraq is full of widows who are often made homeless. Their marriage contracts involve no paperwork, just a verbal agreement between two sets of parents. There are no women judges and male judges are afraid of the potential consequences of their judgements. In one case a son was assassinated to punish his father who was a judge. There is an economic case for human rights, she believes, because you can’t invest where there is insecurity. But here I have to differ as this confuses insecurity with lack of human rights. Saudi Arabia and China have appalling records in human rights but there is no shortage of foreign investment in those countries.
Where she makes a better case is in how we deal with a man like President Putin. If the UK were to pull out of the ECHR as some argue then what message would that send to Putin? The case of Abu Qatada which infuriated much of the press has been properly handled as we only deported him to Jordan after they signed a treaty that meant no evidence obtained under torture would be used in his trial. We need to be able to say to the world that torture is wrong, not only because it is morally wrong, but also because evidence produced in this way is unreliable.
Baroness Kennedy is concerned that public opinion is leading a retreat from human rights. The dismantling of legal aid will not help either. Access to justice is a universal human right. She represented the transatlantic bombers and was paid out of the public purse. Raw democracy, i.e. majoritarianism, does not protect minorities. You need something more. We have made progress but we can never say we have won.