Are rights universal?

Natasa Mavronicola (UCL Student Human Rights Programme): For the over-eager ‘jurisprude’, the panel on “Are rights universal?” disappointingly did not focus on a philosophically heavy debate on universality. Yet for all interested citizens and human beings, the panel provided a crucial hands-on discussion of what we consider our minimum rights should be and what can be done to secure them.

Jean Candler, Head of Policy and Public Affairs at BIHR (the British Institute for Human Rights), readily asserted that human rights are universal and represent the minimum standards of treatment by the state of individuals within it. She dealt with two aspects of the current debate on a British Bill of Rights. The first is the current criticism of the Human Rights Act (HRA) on the basis that rights are being overclaimed. In fact, she said, a very high threshold is first to be crossed before the state is found guilty of a violation of rights under the HRA. The second criticism centres on the HRA’s failure to uphold certain liberties. The alleged failure, she explained, in fact stems from the balancing act inherent to the HRA, which sets certain rights up against other public interests such as national security – if a good enough case is made for those interests to override the right in a given situation, then the right may be interfered with.

Her message was that the myths surrounding the HRA must be dispelled – people must be more aware of their rights and the way they benefit from the HRA. In that way, if people claim their rights in their everyday life, the courtroom can be a last resort.

Roger Smith, Director of JUSTICE, was less apologetic on the HRA. He highlighted that the state, which was the object of much of the day’s criticism, is a misunderstood concept. After all, he explained, the state encompasses the executive, the legislature and the judiciary. He persuasively sang the praises of the judicial branch of the state. He offered three examples where the courts have taken the lead in holding the other two branches of the state accountable for their non-compliance with human rights: the House of Lords’ rejection of the Belmarsh scheme of detention and the same court’s absolute denunciation of evidence obtained by torture, as well as the European Court of Human Rights’ recent condemnation of the DNA database for innocents. If Jean Candler’s key word for the future was “awareness”, it is fair to say that Roger Smith’s key word was “judges”.

Geraldine Van Bueren, Professor of International Human Rights Law, and Andrew Dismore MP, Chair of the Joint Committee on Human Rights, had socio-economic rights on the agenda. The latter mentioned Albie Sachs, a renowned South African judge, who has said that a country without socio-economic rights is a country which has given up on aspiration.

Both Geraldine Van Bueren and Andrew Dismore mentioned the variety of socio-economic rights – for example in the European Social Charter – that the UK is signed up to internationally. In a bid to make these rights relevant, Andrew Dismore referred to welfare benefits, housing, the NHS and education – these, he said, are things that touch people’s lives in ways that other rights don’t. Taking this further, he suggested that these are not just the rights of the “vulnerable” but also of the middle classes. Ranging from the bare minimum protection against being arbitrarily removed from your home (mortgages were a point of reference here) to the progressive realisation of the goal of housing for all, he suggested that these rights must become enforceable in UK courts.

Geraldine Van Bueren referred to the South African public’s increased pride and sense of ownership in their constitution as being largely based on socio-economic rights, which have resulted, for example, in the provision of HIV treatment for newborns being made available to all. On a challenge from the audience against the enforceability of such rights, she pointed out that courts “apportion resources all the time” – yet socio-economic rights in a new Bill of Rights, she said, can overcome the current reluctance to compensate the poor.

David Goodhart, Editor of Prospect, was the calm voice of dissent. He began by stating that human rights are “neither universal nor innate”. His view was that most of people’s rights – whether they are considered human rights, civil and political rights, or socio-economic rights – have been secured through national struggles. The rights that non-citizens have acquired through the HRA are part of what he called “the universalist shift” that followed World War II. He urged us not to allow universalism to obliterate the nation state, which contains safeguards we all hold dear, including welfare rights for citizens and a degree of democratic accountability. He suggested that most rights are both national and contractual in nature, therefore subject to membership in a community and to obligations to fellow citizens. Concluding his anti-universalist analysis, he stated that “we must be free not to extend those rights to non-citizens”.

David Goodhart also criticised Roger Smith’s position, condemning the legalism surrounding human rights, which he said creates the “illusion” that all these difficult and cost-sensitive issues can be legalised away by judges and human rights activists.

So what next? Jean Candler, Roger Smith and Andrew Dismore ultimately favoured the structure of the HRA, which maintains Parliamentary supremacy above any constitutional or human rights. Roger Smith parted company with Geraldine Van Bueren and Andrew Dismore by rejecting the viability of incorporating socio-economic rights into the constitutional framework, evoking lack of political consensus and the need to maintain an “irreducible minimum”. On the other hand David Goodhart appeared to consider a citizen-focussed British Bill of Rights to be the new way forward. Perhaps Jean Candler’s message of the need for increased awareness and debate of the issues was the one truly shared by all.

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