The question of human rights is back near the top of the UK political agenda, talked up by Nigel Farage and his stooge party, Reform UK. The Conservatives are trying to out-Farage Farage in a probably vain attempt to safeguard their threatened position as the leading party of the British right. Even the Prime Minster, Sir Keir Starmer is following in their wake, though in more restrained terms. Reform UKand the Conservative Party have pledged if in government to take the UK out of the European Convention of Human Rights (ECHR) and its Strasbourg court while Starmer says the government is looking at the way the Convention is interpreted by the judges.
This first article of three goes back to basics and asks why we have human rights at all – what is their philosophical or religious basis. In the second I will look in more detail at the different declarations and conventions that exist around the world and the rights they purport to protect, and in the third consider the advantages and disadvantages of the UK leaving the ECHR and the Strasbourg court, and the implications for the Human Rights Act (HRA) 1998, which incorporates the ECHR into UK law.
Are there human rights?
It is widely agreed by governments around the world (whether sincerely or not) that there are universal human rights. The Universal Declaration of Human Rights (UDHR) was signed by 48 countries in 1948 and is now endorsed by all 193 current United Nations (UN) member states. There is a plethora of other declarations to supplement it or provide alternatives. The Universal Declaration is itself supplemented by numerous protocols, including those on Civil and Political Rights and on Economic, Social and Cultural Rights, and conventions against genocide and against racial discrimination and discrimination against women and on the rights of the child and the rights of disabled people. A UN Convention on Refugees has been in force – theoretically – since 1954.
In addition to these UN documents we have several regional declarations on human rights, including the European Convention, the American Declaration (that is, a declaration by the countries of the Americas), the ASEAN (South East Asian) Declaration, the African Charter and the Islamic Declaration.
In spite of these commitments, violations continue to shock the world. There is a mismatch between words and deeds, between theory and practice, and progress on implementation is blocked. Just consider countries like, China, North Korea, Iran for example – not to mention war-torn places like Gaza and Sudan.
The reasons are not hard to see. Many states argue that national sovereignty forbids the UN, its courts and agencies and other international bodies from interfering in their internal affairs. They plead differences of culture and tradition. You don’t have to be particularly cynical to believe that these arguments come from ruling elites determined to maintain their position and privileges; that their oppressed general populations disagree can only be inferred. Meanwhile other states (including the UK) are reticent to challenge them effectively for reasons of trade and diplomacy. So why do we have human rights at all?
Human rights theories
Human rights theory in the West is traditionally based on man’s supposedly unique possession of reason, supplemented by what the Universal Declaration calls dignity and conscience. The use of reason in this way can be traced via the 18th century German philosopher Immanuel Kant to the Stoics of ancient Rome
As the American philosopher Martha Nussbaum explains it: “Reason in the Stoic view is a portion of the divine in each of us. And each and every human being just in virtue of being rational and moral…has boundless worth”; she adds: “It is this deep core that Kant appropriates – the idea of a kingdom of free rational beings, equal in humanity, each of them to be treated as an end no matter where in the world he or she dwells”. This is the ideal that finds expression in Article 1 of the UDHR: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience…
However, mankind’s unique possession of reason and conscience is not recognised everywhere as a basis for human rights and is not helpful in establishing which of the many rights that humans desire should be recognised. One result is that the UDHR contains a long list of what it asserts to be rights which both includes some rights which some governments either openly contest or surreptitiously undermine, particularly political rights, and also leaves out some things which some other declarations include, such as collective or communal rights as opposed to individual rights.
The indivisibility of human rights
The UDHR says that people are entitled to all its rights, not just some, and it is widely held that political rights, for example, are necessary in order to enable people to protect those rights that are even more fundamental, such as the rights to life and liberty. This is what is meant by the indivisibility of human rights. However, insistence on political rights, for example, can serve to alienate autocratic governments from the whole human rights project.
In one attempt to find an alternative basis for human rights, the English philosopher Simon Caney, writing 20 years ago in support of a political philosophy known as cosmopolitanism, introduced what he calls the General Argument for Moral Universalism, an argument founded on the concept of basic human attributes rather than the possession of reason. This argument states all people share certain needs and vulnerabilities, such as that all suffer from physical pain, require food and water and are susceptible to disease; and that there are common goods which all desire, such as life, health and bodily integrity
as well as (more controversially) the right to exercise their senses and imagination, express their thoughts and emotions, to relate to others, to care for other species, to play and to control their environment both political and material.
This is a long list which leads Caney to argue for a long list of rights. However, it can be approached selectively so that only some rights are accepted – for example, some people may think that the expression of emotion or the care of other species are not human rights – thus allowing some rights to be accepted and others not, though this is not Caney’s approach. Whichever rights are prioritised or excluded, however, the General Argument stands, for as Caney says, it ‘is not intended to defend any particular universal values… Rather, it outlines the logical structure for a universalist position but does not specify its content’.
Other theories
As I’ve mentioned, the possession of reason is not accepted by all the declarations as the basis for human rights. As well as in the UDHR, it is broadly accepted in the European, American and ASEAN declarations. However, the African Charter on Human and Peoples’ Rights (ACHPR: 1981) makes clear in its title, with the word ‘Peoples’, that the emphasis on the rights of individuals is supplemented by the rights of nations or other communities. There is no reference to human reason or conscience as a basis but instead a statement that is both more general about human nature and combines the concepts of rights as both individual and collective: it recognises “on the one hand, that fundamental human rights stem from the attributes of human beings…and on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights”.
The Declaration on Human Rights in Islam (Cairo Declaration, 1990) is even more different, as its ground for human rights is religiously based. The member states of the Organisation of Islamic Co-operation (OIC) state in the preamble that they are “keenly aware of the place of mankind in Islam as vicegerent of Allah on Earth [and are] proceeding from the deep belief in human dignity and respect for human rights, and from the commitment to ensuring and protecting these rights as safeguarded by the teachings of Islam.” Article 1 of the Declaration says that all human beings form one family.
Comment
All 193 members of the United Nations have endorsed the UDHR, but in many cases pay it only lip service. Abuses abound. In many regions of the worldas we have seen – Africa, South East Asia, the Americas, Europe and the Islamic world – groups of countries have adopted their own declarations suited to local conditions.
This may have brought about some improvements in some places. Russia imposed a moratorium on the death penalty in 1996 in order to comply with the ECHR (of which it is no longer a member), but nowadays its leaders seem simply to murder their opponents instead. The US, Russia and China are all outside the International Criminal Court.
Some countries prefer to rely on their own constitutional rights rather than universal or even regional rights. The United States, for example, has a Bill of Rights, interpreted by the Supreme Court, which guarantees rights such as freedom of assembly, speech and the press and the right to bear arms. Nora Noralla, an Egyptian human rights researcher, has described the Cairo Declaration as a “forgotten” document. The question that therefore arises for the UK debate on leaving the ECHR and that appears to have gone largely unaddressed so far, is: if groups of nations such as those in Africa, South East Asia, the Americas and the Islamic world can have their own declarations, and individual countries like the US can have their own constitutional rights instead, can and should the UK’s Human Rights Act exist independently and perhaps differently from the European Convention. That would enable the UK Parliament to determine what rights people should have. I will return to this question in Part 3. In Part 2, I will look in more detail at the rights that the different world-wide declarations and conventions purport to protect,
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