Why human rights are wrong

Ten years ago, Britain’s Human Rights Act had just been granted royal assent, and on the eve of the fiftieth anniversary of the Universal Declaration of Human Rights then home secretary Jack Straw ruled that former Chilean dictator General Augusto Pinochet could be extradited to Spain and tried for crimes against humanity.

The mood was self-congratulatory, even bullish. Tyrants had been ‘left quaking’, crowed Ian Black in the Guardian (1). ‘A banner year for human rights’, proclaimed the Independent’s Rupert Cornwell (2). Amnesty International hailed ‘the birth of a new era for human rights’ (3), and even radical anti-imperialist Harold Pinter said that Straw’s ‘brave and impressive decision’ was ‘uplifting’ and had ‘restored his faith’ (4).

In comparison, reactions to the Declaration’s sixtieth anniversary this month were confused and downbeat. ‘Rome was not built in a day’, said philosophy professor AC Grayling in the anti-climactic finale to a series of articles about the anniversary for the Guardian (5). On the same day, his colleague Costas Douzinas wrote that, ‘In the hands of Western governments human rights have lost their true aim and become the latest version of the civilising mission’ (6). Casting around for something to celebrate, Human Rights Watch founder Aryeh Neier and the organisation’s current director, Kenneth Roth, both argued that the main achievement of the Declaration was the existence of the human rights movement itself (7). UK Equality and Human Rights commissioner Francesca Klug conceded that ‘it is very difficult to imagine the nations of the world agreeing to draft such an aspirational declaration now’ (8).

In December 1998, Britain and America were just months away from launching the first-ever ‘war for human rights’ – NATO’s Kosovo campaign. Today, in contrast, one of the main reasons for the hesitant and uncertain tone of the sixtieth-anniversary commentaries is that, in pursuing the war on terror over the past seven years, the authorities have attacked civil liberties at home while presiding over torture and arbitrary imprisonment abroad. As Klug observed, the US and Britain are engaged in ‘a war whose first casualty was the human rights protections that it was supposedly waged to defend. A war fought in the name of democracy and liberty using some of the techniques of those who most despise democracy and liberty.’ (9)

UK foreign secretary David Miliband claimed this month that Britain continues to ‘uphold the values of the UN Declaration’ (10), and prime minister Gordon Brown said that ‘in the week of the sixtieth anniversary… we must stand together to defend human rights and democracy, to say firmly to [Zimbabwean President Robert] Mugabe that enough is enough’ (11). But their comments were completely overshadowed by Jack Straw, now Britain’s justice minister, who used the occasion to suggest that the UK Human Rights Act needed to be reformed. In an interview with the Daily Mail, Straw said he understood concerns that the Act had become a ‘villain’s charter’ – a view he had previously dismissed as ‘nonsense’ (12). His change of heart seemed to have been brought about by the ruling of the European Court of Human Rights, a few days earlier, that the British police cannot retain DNA samples taken from people who are later acquitted or never charged.

The Conservative opposition leader David Cameron managed to outdo both of the government’s positions in a single speech. Calling for Mugabe to be tried by the International Criminal Court, Cameron pledged that a future Conservative government would scrap the Human Rights Act at home, but would ‘make respect for human rights and fundamental freedoms a central part of our foreign policy’ (13). British politicians evidently think that the external imposition of human rights norms is a bad thing when it is being done to ‘us’, but a jolly good thing when ‘we’ do it to ‘them’.

Human rights and sovereignty

As Kirsten Sellars shows in The Rise and Rise of Human Rights, there is nothing new about powerful states worrying that the codification of international rights norms might place restrictions on their own national sovereignty. A confidential 1943 US State Department document outlining arguments for and against an international bill of rights noted that, among the drawbacks, ‘it would mark the extension of international influence into a field which has traditionally been regarded as domestic’.

Despite the apparent continuity, however, there is a sharp contrast between the moment of the Declaration’s inception and our own era. Since the end of the Cold War, the idea has become established that human rights ‘trump’ sovereignty: that a ‘right to intervene’ or a ‘responsibility to protect’ can override the previously established principle of non-interference in a state’s internal affairs. For the founders of the United Nations in the 1940s, however, the promotion of human rights was about legitimising a system based, as the name suggests, around sovereign nation states.

The conventional story has it that world leaders were so horrified by the barbarism of the Second World War that they devised a set of institutions to prevent conflict and promote respect for human rights. This picture of benevolence is somewhat implausible: it was after affirming its commitment to peace and humanity at the UN’s founding San Francisco conference in April 1945 that the US atom-bombed Hiroshima and Nagasaki. Moreover, as Sellars points out, at the moment when they professed ‘respect for human rights and for fundamental freedoms for all’, the great powers who founded the UN ‘all… violated the rights of their citizens, or colonial subjects, or both’.

It is sometimes suggested that allied governments acted under pressure from what in today’s parlance would be called NGOs – Washington took the unprecedented step of inviting leaders of organisations ranging from the American Federation of Labor to the World Council of Churches to act as ‘consultants’ to the US delegation at the San Francisco conference. But Sellars pieces together the documentary evidence to demonstrate that, in fact, the US carefully managed these organisations to give them the impression that they were ‘forcing’ an agenda that government officials had carefully planned for months.

It was not so much largesse as necessity that put human rights on the agenda of powerful states in the 1940s – first as a means to cohere the Allied war effort, and then as a way to legitimise the new postwar world order. After the Holocaust, ideas of race and empire, which had been a source of ideological strength for all the major Western powers in the past, stood discredited. Furthermore, the Soviet Union offered an alternative pole of attraction for subject peoples fighting to throw off the colonial yoke. Against this background, human rights provided a new and much-needed vocabulary of moral legitimacy.

As David Chandler notes in From Kosovo to Kabul, the Declaration was intentionally abstract, since ‘the leading powers were keen to defend the freedoms of national sovereignty for themselves as well as to construct an international framework based on the nation state’. The new legal framework of international relations established under the UN system was founded on principles of non-intervention and the formal equality of sovereign states. Of course, real inequalities persisted, but Chandler argues that despite its limitations, ‘the universal recognition of sovereign equality was a thoroughly radical conception of the authority of the non-Western state’.

The past 20 years, however, have seen the rise of a new ‘humanitarian imperialism’ which, as Jean Bricmont notes, ‘tends to scorn the principle of national sovereignty’. Similarly, Chandler suggests that since the end of the Cold War there has been ‘a return to the system of open Great Power domination over states which are too weak to prevent external claims against them’. From the imposition of ‘safe areas’ and no-fly zones in Iraq after the 1991 Gulf War to the ‘soft’ invasions of Somalia and Haiti, from the establishment of international protectorates in Bosnia and Kosovo to the projects for ‘regime change’ in Afghanistan and Iraq after 9/11, the territorial integrity of weaker states has repeatedly been attacked and their capacity for self-government called into question. The difference from the colonial era, Chandler observes, is that contemporary intervention is not ‘legitimised by a conservative elite, on the basis of racial superiority and an imperial mission, but by a liberal elite, on the basis of ethical superiority and a human rights mission’.

The end of international law

The physical assaults on weaker states have been accompanied by an intellectual attack on the principle of sovereign equality. This has been accomplished in a variety of ways: by arguing that some extreme situations allow a ‘right of intervention’; by targeting ‘rogue’ states who allegedly threaten the peace; or by identifying ‘failing’ states who cannot maintain order.

The idea currently in vogue is that there is a ‘responsibility to protect’, which, if not discharged properly by states, has to be taken up by the ‘international community’. According to the influential International Commission on Intervention and State Sovereignty, ‘sovereignty… means accountability to two separate constituencies: internally, to one’s own population; and internationally, to the community of responsible states’ (14). The non-Western state is no longer understood as sovereign – as accountable to no higher power than its own citizens – but is held to account from above by ‘responsible’ international actors. Its sovereignty is ‘conditional’ on its good behaviour.

If the redefinition of sovereignty as ‘responsibility’ effectively means the end of sovereign equality, it also means the end of international law, argues Chandler: ‘By the mid-1990s, the UN’s role had been transformed from an institutional attempt to provide a collective security system towards one where open-ended resolutions “authorised” unilateral military interventions which were then retrospectively validated.’ When a ‘coalition of the willing’ bypassed the UN Security Council and legitimised military intervention on ethical, human rights grounds in Kosovo in 1999, it opened the way for similar action in Afghanistan and Iraq a few years later.

Conventional wisdom has it that international law has become more important in recent years as Western governments have supported a ‘rules-based system’, or an ‘emerging system of international justice’, complete with courts and tribunals to try human rights abusers. It is from this perspective that human rights campaigners denounce the illegality of the war on terror. According to human rights lawyer Geoffrey Robertson, for example, ‘the worst setback came after 9/11’, with the Bush administration’s disregard for international law (15).

Yet advocates of intervention for human rights have repeatedly advocated illegal military action. Like many others, Robertson is pinning his hopes on American president-elect Barack Obama. He notes that the ‘human-rights experts’ on Obama’s team are already complaining of ‘the UN’s reluctance to intervene in the domestic affairs of its members’ and are floating the idea that ‘a new international organisation is required, not as an alternative to the UN but as an association of democratic nations’ (16). This ‘new’ idea sounds suspiciously like a return to the days of ‘might is right’. As Chandler observes: ‘The new rights of intervention whether cast in terms of a new right of humanitarian intervention or an extended right of self-defence, which includes the right of prevention or pre-emption, cannot be available to any but a select few. These are the rights of hegemony not the rights of legal equality.’

What kind of rights?

As Robertson’s comments suggest, the experience of the Bush and Blair years has done little to shake the consensus in favour of ‘ethical’ interventions. Pointing to the limited critique of the new human rights approach to international relations, Chandler quotes Alex de Waal’s comment that: ‘It is as though the sociological study of the church were undertaken by committed Christians only; criticism would be solely within the context of advancing the faith itself.’ Bricmont draws the same analogy, but in order to declare his status as a believer: ‘I might liken my position with respect to human rights to that of left-wing Christians who accept Christian teachings but criticise the way they are used.’

A weakness of Bricmont’s argument is his conviction that since ‘the intervention discourse is ostensibly an ethical one, it is mainly on ethical grounds that it must be combated’. Yet criticising ‘ethical’ human rights intervention because it is not ethical enough rather misses the point. The problem with the contemporary human rights discourse is that, in elevating ethics, it devalues politics and redefines the meaning of rights.

There are, of course, two sorts of rights enshrined in the Declaration. The first is a ‘negative’ conception of civil or political rights as establishing freedoms from state interference, such as freedom of movement, freedom of assembly and freedom of speech. The second is a ‘positive’ conception of rights as making claims on the state to act: the Declaration lists such economic, social and cultural rights as ‘the right to a standard of living adequate for… health and wellbeing… including food, clothing, housing and medical care and necessary social services’. Chandler argues that, in the development of human rights theory since the 1990s, there has been a ‘conflation of rights of individual and collective autonomy… and rights as moral claims for positive state action’.

In the West, the emphasis has generally been on civil and political rights, partly because highlighting the lack of political freedoms in the Soviet bloc was a useful weapon in the Cold War, but also because this is how rights have been understood in the liberal democratic tradition. As the US State Department planners noted in the 1940s, a declaration of such rights outside the framework of a national polity would ‘lack the juridical basis on which national bills of rights are founded, for there is no international sovereignty or true international government to grant or enforce individual rights’. This is sometimes seen as a strength: Aryeh Neier, for example, argues that the power and universal appeal of human rights stems from the fact that they ‘do not depend on membership of a particular community or citizenship in a certain state’ and ‘do not derive from a social contract’ (17). Such rights are universal only in the abstract, however, since there is no legal subject able to exercise them (18).

In this sense, human rights are not really rights as traditionally understood. As Chandler notes, for democratic rights theorists, ‘If a right could not be protected, or exercised, by its bearers then it could no longer be a right, an expression of self-government’. The enforcement of human rights, on the other hand, depends not on autonomous self-governing subjects, but on external action in support of victims who cannot exercise those ‘rights’ on their own behalf. Like ‘conditional sovereignty’, human rights are in the gift of the powerful.

In this way, ‘negative’ rights become confused with ‘positive’ rights. The latter are sometimes seen as the more ‘radical’ aspect of the Declaration, though as Sellars points out, ‘The declaration was not a radical document. Rather, it accurately reflected the conservative social mores and liberal economic values of the immediate postwar era.’ In the 1940s it seemed uncontroversial to emphasise the centrality of the family, or the importance of trades unions. Today, the UN flags up climate change, people trafficking, the environment, terrorism and disability as key human rights issues (19).

Whatever one thinks of the content of particular sets of positive rights, the problem is that when such claims are presented as ‘rights’ they are taken out of the realm of political debate and disagreement. Where negative rights carry no implication about how we should use them, positive rights imply action for ‘good’ moral ends. Where democratic rights presuppose the self-government of politically equal citizens, positive rights bypass the sphere of democratic decision-making in favour of ‘ethical’ policy.

Emphasising the power of the ‘human rights ideology’, Bricmont rightly draws attention to the strength of the consensus around the desirability of human rights intervention. Yet, both Sellars and Chandler suggest, the rise of human rights is better understood as a sign of underlying ideological weakness. For Sellars, the historical pattern has been that ‘human rights always came to the fore at moments when other ideals were exhausted or ineffective’, whether giving legitimacy to the post-1945 order, or providing President Jimmy Carter with a new justification for US policy after defeat and demoralisation in Vietnam.

For Chandler, more focussed on the present, it is the collapse of the political framework of left and right after the end of the Cold War which is key. Political leaders have elevated the ethical discourse of human rights in an attempt to recover a sense of mission and purpose in our post-ideological era. What Chandler describes as the ‘narcissistic drive behind the ethical projection of power’ means that politicians seek to regulate the conduct of weaker states overseas, and to regulate our behaviour at home, as a way to drum up a set of ‘values’. As Straw said of his plans for reform of Britain’s human rights legislation: ‘It’s about identifying values that bind us and what it is that makes Britain great.’ (20)

With regard to domestic affairs, the aspects of the Declaration that are particularly emphasised are those that stress ‘duties to the community’ and ‘the just requirements of morality, public order and the general welfare in a democratic society’. Hence, the lesson Gordon Brown draws from the Declaration is that ‘we owe obligations to each other… such as respecting each other’s choices and beliefs in order to create a responsive society that is civilised and decent’ (21). Similarly, Straw argues for ‘a declaration of responsibilities and rights which grow together, the kind of rights we are owed and the rights which we owe, in a single document’ (22). The nonsensical and repugnant idea of people ‘owing rights’ to the state is a sign of how far the understanding of rights has become degraded.

Philip Hammond is reader in media and communications at London South Bank University, and is the author of Media, War and Postmodernity, published by Routledge in 2007. (Buy this book from Amazon(UK).)

Humanitarian Imperialism: Using Human Rights to Sell War, by Jean Bricmont is published by Monthly Review Press. (Buy this book from Amazon(UK).)

From Kosovo to Kabul and Beyond: Human Rights and International Intervention, by David Chandler is published by Pluto Press. (Buy this book from Amazon(UK).)

The Rise and Rise of Human Rights, by Kirsten Sellars is published by Sutton Publishing Ltd. (Buy this book from Amazon(UK).)

(1) ‘Birthday boost for human rights’, Ian Black, Guardian, 10 December 1998

(2) ‘Barbarity, hatred – and hope’, Rupert Cornwell, Independent, 10 December 1998

(3) ‘Pinochet in the dock tomorrow’, Joanna Bale and Philip Webster, The Times (London), 10 December 1998

(4) ‘The Pinochet Decision: “That he will be made to face his past is uplifting”’, Harold Pinter, Independent, 10 December 1998

(5) Rome was not built in a day, AC Grayling, Guardian, 10 December 2008

(6) The “end” of human rights, Costas Douzinas, Guardian, 10 December 2008

(7) A universal revolution, Aryeh Neier, Guardian, 7 December 2008

(8) The Universal Declaration of Human Rights: Sixty years on (pdf), Francesca Klug, lecture delivered at Chatham House, 8 December 2008

(9) The Universal Declaration of Human Rights: Sixty years on (pdf), Francesca Klug, lecture delivered at Chatham House, 8 December 2008

(10) 60 years of the UN Declaration on Human Rights, David Miliband, 3 December 2008

(11) Mugabe must go, Brown insists, as crisis grips Zimbabwe, Matthew Weaver, Guardian, 6 December 2008

(12) Jack Straw reveals: Why I want to change the law, Benedict Brogan, Daily Mail, 8 December 2008. A year earlier, Straw wrote: ‘Some on the right complain that all this has been is a “villain’s charter”. Nonsense.’ (In Labour’s decade is liberty’s best since the vote was won, Guardian, 12 December 2007.)

(13) Mugabe must go now, David Cameron, 8 December 2008

(14) The Responsibility to Protect: Research, Bibliography, Background, International Development Research Centre, International Commission on Intervention and State Sovereignty, 2001: p11

(15) ‘The diamond anniversary of a golden law’, Geoffrey Robertson, Daily Telegraph, 7 December 2008

(16) ‘The diamond anniversary of a golden law’, Geoffrey Robertson, Daily Telegraph, 7 December 2008

(17) A universal revolution, Aryeh Neier, Guardian, 7 December 2008

(18) See ‘Human rights, law and democracy in an unfree world’, by Norman Lewis, in Human rights fifty years on: a reappraisal, Tony Evans (ed), Manchester University Press, 1998

(19) List of Rights Issues, Office of the High Commissioner for Human Rights, 2008

(20) Jack Straw reveals: Why I want to change the law, Benedict Brogan, Daily Mail, 8 December 2008

(21) Speech marking the 60th anniversary of the Universal Declaration of Human Rights, Gordon Brown, 10 December 2008

(22) Jack Straw reveals: Why I want to change the law, Benedict Brogan, Daily Mail, 8 December 2008