Is the human rights era drawing to a close?

Conor Gearty discusses this question in the European Human Rights Law Review

Readers of this site will be familiar with Mr Gearty as we reviewed his book On Fantasy Island a few years ago.  In this article*, Mr Gearty discusses the current state of human rights.

Anyone looking at the current state may conclude that little has improved since the end of the war.  The atrocities committed during the war, most notably the holocaust, although millions also died in Soviet Russia during the Stalin era, led to the formation of the UN and ultimately the signing of the UN Declaration of Human Rights in 1948.  There was a strong hope at the time of ‘never again’.

Currently, we have terrible events in Myanmar with the killing and driving out of Rohingyas.  Syria has seen massive destruction and civil war and the use of chemical weapons.  The Uighur people in China are being persecuted for their faith and about one million are being forcibly ‘re-educated’.  We have seen genocide in Cambodia and Rwanda.  The treatment of Palestinians by the Israelis is disgraceful.  All these and many more are carried on with little sign of realistic intervention by the UN.  It is as though the Declaration was never agreed all those years ago.

Reasons

Conor Gearty discusses some of the reasons for this decline in human rights around the world.  His first argument is that the responsibility was placed on governments.  It was no doubt assumed at the time that governments could be relied on to be the police so to speak.  Experience has shown that it is governments which are the problem and who are all too keen to deny the human rights of their citizens.  Several of the Gulf states are prime examples of denial of basic liberties and the rule of law.  Abuses and the use of torture are routine.

The problem with the reliance on states is the UN principle of non-interference in the affairs of states.  So acting through them, but being inhibited from interfering with them, means the UN is largely neutered when it wants to take action.  He also makes the point that non-state actors are not controlled by human rights considerations.  He instances the World Bank and IMF which both impose conditions on state’s finances which in turn can leave them to handle the human rights consequences.

We can add to this the rise in corporate power.  There are many corporate actors now which are bigger than many of the states they operate in.  The large resource companies and banks are able to act with impunity in many countries.  They can extract wealth corruptly with ease and deny the host country the proceeds.  The UK is a major centre for this corruption and Transparency International has published a number of reports giving the details.  Recently, there has been a series of revelations concerning Isabel dos Santos alleged looting of Angola.  She was helped in this activity – which involved complex entities and transactions in several countries – by one of the UK’s big four accountancy firms PwC.  It is difficult for countries stricken by this plunder of wealth to improve the well being and human rights of its citizens while vast sums are stolen from them.  But human rights only appear in the background and the corporate and City firms are not a direct part of the UN Declaration.

Austerity is something which has hit the poorest the hardest.  Gearty argues that this has led some to argue that human rights are no longer ‘fit for purpose’.  Many of these factors are economic in nature and seem outside the remit of human rights laws – at least directly.

9/11

Another factor which has acted against the interests of human rights he argues and left many organisations ‘stuck of the wrong’ side were the attacks on the Twin Towers and elsewhere in America by al Qaeda.  America launched its ‘war on terror’ and a whole series of human rights infringements followed.  The development of black sites and Guantanamo Bay enabled the US to hold large numbers of people incommunicado and without due process and to institute regimes of torture [warning: the pictures are distressing].  This left many human rights organisations seemingly defending the rights of terrorists.  Terrorism has never been defined he argues.  Guantanamo Bay is still a blight on the politics of the USA: out of the 780 held there and subjected to harsh treatment over several years, 731 were released without trial (source: Human Rights Watch).

Additionally, in the UK, we have seen a concerted press campaign to argue that human rights are being used to defend criminals, terrorists and ‘citizens of nowhere’ as he terms them.  They are not for ordinary people but for the ‘unworthy’ is the message increasingly portrayed.

This has enabled the current Conservative government to argue for the Human Rights Act to be abolished although a number of years have passed since David Cameron first promised to do so.  It has never been clear what it is that the Conservatives want repealed or removed from the HRA, a question we asked the Salisbury MP Mr John Glen but without a clear answer.  This year (2020) we may get to find out.

There is clear evidence that commercial and trading considerations outweigh human rights.  This is another example of states – who should be the guardians – are in fact cheerleaders for arms firms.  We have highlighted on this site the UK’s role in selling arms to the Saudi government to carry out its hideous destruction of Yemen.  The government also supports the annual DSEI arms fair and goes to great pains to exclude human rights representatives from attending.  There is little doubt that to ensure the success of post Brexit Britain, little regard will be given to human rights in the rush to secure trade agreements around the world.  In our last post, we highlighted a Salisbury firm which is alleged to sell spyware equipment to enable regimes with poor human rights records to penetrate the phones, emails and computers of those it does not like.

Conclusions

The basic issue is that with governments the custodian of human rights, the protection of basic rights would always be on shaky ground if governments are themselves not committed to upholding them.  Nowhere is this more relevant than with the plight of refugees: it being governments which place them in a perilous position in the first place and then other governments which close their borders and fail to help them.

Politicians are more concerned with securing and holding on to power that on maintaining the rights of its citizens.  The right wing press and some politicians have portrayed these rights as somehow the preserve of criminals, terrorists and the like who use them to escape justice.  So abolishing the act cannot come soon enough for them.

Another crucial factor is the increasing pressure of external factors which impinge on people’s rights.  These are the drivers and it is rights which suffer at the end.  Responses to these pressures have led several leaders to act in denial of human rights.

New threats, such as inequality, climate change, and the replacement of manual work by AI and machines, mean those who fear that the old social contract is no longer in their interests are making their voices heard.  They say, “these are our jobs”, “this is our land”, “our community has certain shared values”, and “people like us are the only real citizens”.  These sentiments, echoing around the presidency of Donald Trump or during Brexit, are in direct opposition to human rights.

States don’t much like rights – they’re an annoyance or an embarrassment.  The survival, and flourishing, of human rights requires people, the citizenry, the populace, to say that these rights are important and to demand that their governments observe them.  And by that same logic, the people can sink them, too. In the end it is us, we – however we define that problematic term – who will make the difference between the failure or success of human rights, whatever the external and internal threats we face.  The Conversation, October 23 2018

If we accept that a reliance on governments to be the custodian of our rights, then their future is unlikely to be positive.  As pressures build, whether from economic, climate or AI, then the rights of its citizens will be the first to go.  These arguments point to viewing human rights in a more nuanced way.  Rights are now influenced by a range of factors beyond straightforward considerations of what the state and judiciary do.  The City of London for example, plays a key role internationally in helping move vast quantities of wealth out of the reach of governments thus making improving the living standards of its citizens harder if not impossible for them to achieve.

The central problem seems that by placing the protection of human rights entirely in a legal setting, it risks becoming bound up in a too narrow frame of reference.  There needs to be a shift in thinking away from the state and the law and towards more ethical considerations.  We need to move towards a society structured around the well-being of individuals not one where people have to fit in with the demands of the state.  Since the state only has partial power in any particular country, citizens are at the mercy of non-state organisations, international companies, the climate, and ever changing technology.  Recent events in China, show that even with the enormous power of the communist party, it became the victim of a virus.  The sum of these forces frequently (nearly always in fact) act against the rights and well-being and rights of its citizens.

*Is the Human Rights Era Drawing to a Close?  European Human Rights Law Review, Issue 5, 2017