Human rights: a reactionary cause
The movement for human rights was born of a fear of democracy.
In the aftermath of the Brexit vote, many Remainers were keen to emphasise that leaving the European Union (EU) did not mean leaving the remit of the European Court of Human Rights (ECHR). As they saw it, retaining the human-rights regime was a means to retain some vestige of what they perceived to be the progressive European project. It was as though they felt, in the aftermath of Brexit, that all was not lost as long as they could hold on to human-rights laws. Hence, human-rights proponents were keen to highlight the fact that the Human Rights Act was passed into English law by the UK parliament and did not represent a law ‘imposed by Brussels’ – a retort they find useful when the human-rights regime is called ‘undemocratic’.
Aspects of this narrative are technically true. The EU and the ECHR are legally separate institutions. The UK did not join what was to become the EU, namely the European Economic Community, until 1973, whereas the European Convention on Human Rights came into force in 1953 and Britain granted individuals the right to petition the ECHR in 1966. The convention itself is now a part of English law through the 1998 Human Rights Act, which was passed by parliament under prime minister Tony Blair’s Labour administration. The presence of the human-rights regime in UK law cannot be attributed, therefore, to any foreign body, nor is there anything to say that leaving the EU entails leaving the ECHR.
However, it is also right to see the EU and the ECHR as politically and historically aligned. Both developed out of the emerging European movement following the Second World War. This movement was motivated by conservative ruling elites’ need to manage democracy in the face of political threats, in particular the perceived threat of the spread of socialism from Eastern Europe (1). The existence of a human-rights framework owes everything to the attempts of postwar elites to centralise economic and political control over the European continent and to manage the democratic will of European peoples.
Until recently, the anti-democratic motivations of the ECHR’s founders have been hidden by an appeal to humanitarian sentiments. It has become commonly accepted that the creation of the ECHR, and related human-rights institutions, was designed to prevent a repeat of the atrocities that marked the first half of the 20th century. However, it is more accurate to say that these atrocities, and their political precursors, especially Nazism, were used to discredit democracy as a means of protecting individual rights.
Marco Duranti’s The Conservative Human Rights Revolution provides an insight into the anti-democratic foundation of the European human-rights movement. According to Duranti, the ‘surprisingly small group of individuals [who] shaped the basic contours of the European human-rights system yearned for the mythical Christian Europe of a bygone age’ (2). These were individuals like David Maxwell Fyfe, a staunch free-market conservative. He, like Churchill, saw a serious threat in the apparently social-democratic direction taken by Britain following the election of Labour and Clement Attlee as prime minister. Socialist and Communist parties contributed to the drafting of the European Convention and there could be little doubt that the Convention had a ‘social-democratic orientation’, but the primary role of the human-rights framework was to provide an alternative moral framework to that offered by socialism.
The European human-rights movement began in 1948. It was the year the Soviet Union had blockaded West Berlin in response to the Western allies introducing the Deutsche Mark, and countries in both east and west Europe began receiving $13 billion in aid from America under the Marshall Plan, which many saw as an attempt at suppressing Communist influence in western Europe (3). Perhaps most significantly, the Communist Party of Czechoslovakia, backed by the Soviet Union, staged the ‘Victorious February’ coup d’etat. This represented the first overthrow of a democratically elected government by Soviet-backed forces since the conclusion of the war. These events all helped to fuel the overwhelming fear of Communism among Europe’s elites.
The existence of a human-rights framework owes everything to postwar elites’ attempt to exert economic and political control over the heads of European peoples
It was against this background that The Hague Congress, or the Congress of Europe, seen as the birth of the European project, took place. So it was, in the Hall of Knights, that a network of politicians, journalists, philosophers, artists and thinkers, from 17 countries, gathered to discuss the future of Europe. In the hall’s palatial banqueting space, the congress was set up as an alternative parliament for a divided continent. Eight-hundred contributors attended at the invitation of the International Committee of the Movements for European Unity, an organisation that brought together the various campaigns for a federal Europe that had emerged during the first half of the 20th century.
The purpose of the congress, as one account has it, was to ‘demonstrate the existence, in all free countries of Europe, of a body of public opinion in support of European unity, to discuss the challenges posed by European unity and propose practical solutions to governments’. By the end of the congress, the delegates had formulated a ‘message to Europeans’, promising the development of a new ‘human-rights court’ and the establishment of a united Europe, within which ‘the free movement of persons, ideas and goods is restored’.
The reference to ‘free’ countries was highly significant. First, because it defined those attending the congress in opposition to the unfree countries of Eastern Europe, which the West wanted to portray as beholden to Moscow. And secondly, because it showed how the congress was defining a ‘free’ country in postwar Europe, as being free from Communism. Right from its inception, the European movement attempted to take ownership of the meaning of freedom as part of its attempt to define itself against the evils of the Soviet Union. Human-rights laws would come to be fundamental to the European movement’s attempt to define freedom in its own image.
The men who arrived in The Hague intent on crafting a new future for Europe were, in Duranti’s words, ‘united in their belief that a democracy in which tyranny of the majority held sway was little better than a dictatorship’. Duranti notes that ‘while their socialist opponents called them anti-democratic, conservatives saw their aim at The Hague Congress as protecting democracy from itself’. Throughout the congress, the spectre of Nazism and the threat of Communism were presented as possible outcomes of untrammelled democracy.
Winston Churchill opened proceedings at The Hague by proclaiming that the congress could ‘fairly claim to be the voice of Europe’. These few words were telling. For this ‘voice of Europe’ belonged to attendees who were, in the main, not there on any democratic mandate. It was predominantly attended by people who had either recently been rejected by their voting public, including Churchill, or who had never won a vote in their lives. Even those delegations which did include elected members of parliament tended to be dominated by Catholic conservatives over liberals and socialists. The claim in the congress’s mission statement — that it wished to ‘demonstrate the existence, in all free countries of Europe, of a body of public opinion in support of European unity’ — suggested that the performative display of unity was more important than its political substance.
Churchill argued that a nation-state-based democracy had been responsible for the rise of Hitler. He spoke of ‘the gradual assumption by all the nations concerned of that larger sovereignty [as opposed to national sovereignty] which can alone protect their diverse and distinctive customs and characteristics and their national traditions, all of which under totalitarian systems, whether Nazi, Fascist, or Communist, would certainly be blotted out for ever’. Throughout the congress, totalitarianism was held up as a possible outcome of nation-state democracy in Europe. Attendees talked of the need ‘to modify the traditional nation-state pattern’ and ‘establish political jurisdiction broad enough to satisfy the political and economic needs’ of the time. A speech given by one leader showed how human rights were always conceived of as part of broader efforts towards European federalism. She proclaimed that given Europe’s ‘future is a federalist future, we believe that the defence of human rights is impossible in international terms except in a federalist framework’.
Throughout The Hague Congress in 1948, the spectre of Nazism and the threat of Communism were presented as possible outcomes of untrammelled democracy
The threat of Communism was uppermost among Churchill’s concerns. He had written to Anthony Eden, the Conservative deputy leader, in 1942 to say that his ‘thoughts rest[ed] primarily in […] the revival and glory of Europe’, and he feared that Europe’s only other path was ‘toward Bolshevism’. There was a semblance of substance to Churchill’s fears. He had been ousted from the UK government in 1945 by Clement Attlee’s Labour Party elected on a socialist platform of wide-ranging social reform, from the creation of the National Health Service to the development of the welfare state. Churchill had even accused Atlee of attempting to install a ‘socialist dictatorship’ in Britain in the run-up to the election. Unfortunately for Churchill, this was a ‘socialist dictatorship’ that had a popular mandate. Churchill thus addressed the congress as someone threatened by the spread of socialism, and constructing ‘Europe’ as an entity opposed to ‘socialist dictatorship’. ‘Europe has only to arise and stand in her own majesty, faithfulness and virtue’, he said, ‘to confront all forms of tyranny, ancient or modern, Nazi or Communist’.
Today, ‘protecting democracy from itself’ is still at the heart of the human-rights movement. A 2017 report by Bright Blue, a conservative think-tank, identifies the Human Rights Act as a vital curb on the ‘totalitarian’ impulses of a ‘socialist’ government under Labour’s Jeremy Corbyn, on the basis that the convention is deferential to private-property rights. A 2017 campaign by the left-leaning human-rights group, Rights Info, crowdfunded a film on how human rights can ‘stop the rise of the far right’. The crowdfunding invitation featured footage of Nazi parades and Jews in Auschwitz interspersed with modern footage of marches by the English Defence League and US white nationalists. The message of the film was that human rights in the present can prevent a repeat of the evils of the past, placing a curb on the apparent rise of the far right among the general population. This shows the extent to which the claim that democracy gives rise to tyranny has remained the central argument of supporters of human rights.
The fear of socialism motivated other human-rights institutions as well. Kirsten Sellars’ The Rise and Rise of Human Rights explores in forensic detail how the Universal Declaration of Human Rights arose from the West’s need to present a coherent self-image following the Second World War, explaining how human rights went from a fringe interest among a minority of academic lawyers to ‘formulating the language of late 20th-century international relations’ (4). The shambolic and inconclusive trials at Nuremberg and Tokyo against war criminals symbolised the lack of moral authority experienced by the Allies in the aftermath of war. The language of ‘human rights’ moved from a fringe obsession among international lawyers to a key tool in the armoury of political actors precisely because universalism and consensus were missing from the conduct of international relations. In Sellars’ words, ‘The iron fist of global power was thus wrapped in the velvet glove of international humanitarianism’.
For Sellars, the idea of human rights originated during the Enlightenment, ‘as reason began to triumph over religion and the new sensibility embraced ideals of individual freedom and social equality’. However, it was not until the early 1940s that the modern human-rights system began to influence global politics. It gained significant international momentum with the founding of the United Nations, at the San Francisco Conference in April 1945. The US had laid plans for a new ‘international organisation’ since before the war, one that would replace the precarious balance of power that had persisted during the first four decades of the 20th century. This new global conglomerate would be the most effective way of securing peace and stability in the postwar world. The heart and stomach of the organisation would be the provision of a veto to the major global powers: Russia, Britain, America, China and France, which would allow the largest countries to better manage the affairs of the smaller ones.
The idea of protecting democracy from itself is still at the heart of the human-rights movement
The language of human rights would provide a moral justification for this new world order, which would place stability and enduring peace as the highest priorities of international relations. The idea that human-rights laws could embody human dignity meant they could be made sacrosanct, and placed above the political concerns of the countries signing up to them. In other words, human-rights laws would be impervious to the views, wishes and demands of national populaces. But this utopian vision did not last long. Right from the beginning, disagreements about the provisions of the Universal Declaration illuminated the disparate and divergent political positions of the contributing nations. The attempt to craft an apolitical, democratically removed baseline for all the countries of the world, one situated in the primacy of human dignity, was immediately stalled by the social and political realities of the signatory states.
Again, the fear of bolstering socialism in Europe lay at the forefront of concerns for both the UK and the US. They both worked hard to squeeze out a ‘right of political rebellion’ from the early drafts of the Universal Declaration. Both countries had experienced widespread civil disobedience in the early parts of the 20th century, from an organised and increasingly militant working class, so the idea of bolstering these movements with human-rights protections was politically unpalatable. While the declaration included social and economic rights, what precisely these rights would entail was hotly disputed. The British defined social and economic rights narrowly, as providing for some sort of social insurance. Other countries, including Panama and Venezuela, conceived of social and economic rights as providing ‘social security from the cradle to the grave’. It was simply not possible to create a document that could allay the fears of socialism from one part of the globe and actively promote socialist principles from another.
Accordingly, the Universal Declaration was not a radical document. Rather, ‘it accurately reflected the conservative social mores and liberal economic values of the immediate postwar era’. Sellars notes that ‘it proclaimed trade-union rights and the rights to enter into and dissolve marriage freely, but also reaffirmed the family as the natural and fundamental unit in society’, and carefully reasserted the ‘right to own property’. Much like the drafters of the European Convention on Human Rights, the drafters of the declaration were driven by conservative principles and an overriding concern to ensure stability. Their determination to enshrine the right to private property reflected their concerns about the spread of socialism, a fear shared by the drafters of the European Convention on Human Rights. Above all, they feared the results of untrammeled democracy. Today, it is this fear of democracy that echoes in our arguments about human rights, a fear now shared by both the left and right.
The ascendency of human rights in the aftermath of the Second World War was part, then, of an attempt by European elites to manage mass democracy. They were seeking to defend themselves against the spread of socialism, and re-establish the position of European Christian values, which they perceived to be threatened by democracy. Internationally, the human-rights framework was to provide a powerful moral justification for transnational institutions like the UN and European Union.
Today, leftists and liberals imagine that human-rights laws are a guarantor of freedom. They have bought into the founding myth of the human-rights project: that judges are better guardians of freedom than the people. That’s why the first step towards developing a freer society would be to debunk this myth. Human rights have done little to protect our freedom; rather, by managing and limiting democracy, they have presided over its collapse.
Luke Gittos is a spiked columnist. The above is an edited extract from his new book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, published by Zero Books. Order it here.
(1) The European Court of Human Rights: Between Law and Politics, by J Christoffersen and MR Madsden (eds), OUP, 2013
(2) The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention, Marco Duranti, OUP USA, 2017
(3) Postwar: A History of Europe Since 1945, by Tony Judt, Vintage, 2010
(4) The Rise and Rise of Human Rights, by Kirsten Sellars, Sutton, 2002