So instead of invoking the unique nature of the threats we face today as a reason for relinquishing our historical attachment to British liberty, we meet these tests not by abandoning principles of liberty but by giving them new life. We all approach the history of these islands in our own way. But for me certain key themes emerge over and over again through the centuries to characterise the British conception of liberty.
First, I trace the historical roots of liberty in Britain to a struggle for tolerance, by which I mean also a gradual acceptance of pluralism -a notion of political liberty that would allow those of different denominations and beliefs to coexist peacefully together. The commitment in Britain to basic freedoms of worship, assembly, speech and press began to emerge in the 16th and 17th centuries alongside a rejection of religious persecution.
This did not happen all at once, or without setbacks and struggle. The flames of religious intolerance burned across this land too. But never as strongly as in continental Europe. And down the centuries the British people have come to demonstrate a shared belief that respect for the dignity and value of every human being demands that all be given the freedom and space to live their lives by their own choices, free from the control and unjustified interference of others.
There is of course always the danger that villains of history become redeemed by the passage of time. There is a human instinct to recast the past as a lost golden age. I do not wish to fall into that trap. Nor should we succumb to an excessively Whig-like interpretation of history that assumes an inevitable stage-by-stage progress. In particular we should neither glorify nor distort what has gone before - and the struggles, both the ups and downs, of empire are not long behind us - to uphold a particular view of where we are now or what we can become.
So we need to recognise, for example, that it took until for Catholic emancipation, even later for legislation ending discrimination against the Jewish community. It is true that in our franchise was more narrowly restricted than nearly all other countries in Europe.
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It was only in the second half of the twentieth century that Parliament took action to combat discrimination against women and ethnic minorities and there is still much work to do in these areas and against discrimination on the grounds of sexuality, disability and religion. But the single most powerful thread that runs though our history is a succession of chapters in the defence of liberty and toleration. We gave refuge to Huguenots fleeing persecution in the s. By the eighteenth century, London was arguably already the world's most diverse city - a situation which we can remain proud of in Britain to this day.
The abolition of slavery was an act that led the world in the defence of human dignity - and today our abhorrence of torture is and must be unequivocal. And as the chapters have unfolded and the battles have been won, tolerance in Britain has evolved from a passive defence of free speech and freedoms of press and assembly into a positive assertion of their place in our progress. Indeed today one of the qualities British people say they admire most about our country is our tolerance, and the characteristic that makes them most ashamed is any intolerance.
And this British idea of liberty evolved into something even more remarkable in the early modern era - the right to dissent - fought for by the civil war dissenters and embodied in the campaigns of the chartists and later the suffragettes. Now, tolerance may have been instrumental in shaping modern British beliefs in liberty, but liberty for Britain steadily became not just about mutual acceptance but also about due process against arbitrary power.
While this great tradition can be traced back to the Magna Carta, it was the rise of the modern state with all the new powers at its disposal that made the 17th century the pivotal period in the struggle against arbitrary and unaccountable government as Britain led the way in the battle for freedom from hierarchical rule, for human rights and for the rule of law.
And tracing Coke's defence of common law, the work of John Locke and the Bill of Rights of right through to the first of the Reform Acts, Macaulay concluded that 'the authority of law and the security of property were found to be compatible with a liberty of discussion and of individual action never before known'.
And in the mid to late 20th century, this idea of liberty increasingly became the foundation of a new international order where the right of everyone - human rights - should be respected by everyone. On an island off Newfoundland in , Churchill and Roosevelt together drew up the Atlantic Charter, and by beginning the system of international law based on the fundamental rights of all human beings, Britain led the way in asserting the inviolability of individual rights, irrespective of race or nationality and made the freedoms so dear to Britain the cornerstone of a new international order.
And a few years later Britain led the way in the European Convention of Human Rights so that the same insistence on tolerance, the same defence against the arbitrary power of governments, the same fundamental rights and implicit mutual obligations between all human beings could provide protection to all individuals wherever they were. One view of the American tradition of liberty manifests itself in the leave me alone' state. But while concern for privacy is central in our tradition, the British conception of liberty which runs though and defines much of our national experience has not led, at least for most of our history, to notions of the isolated individual left on his own - it is privacy not loneliness that British people seem to value.
Nor did it lead to selfish individualism. Instead, throughout the last three hundred years in Britain, as Chief Rabbi Jonathan Sacks has eloquently described, the progress of the idea of liberty has gone hand in hand with notions of social responsibility: As Gertrude Himmelfarb puts it, in Britain the enlightenment focus on asserting the rights of individuals was accompanied by a cluster of 'social virtues' - benevolence, improvement, civic society and the moral sense underlying shared purpose. Thus John Stuart Mill did not, in the end, call for unfettered freedoms, but argued that 'there are many positive acts for the benefit of others which he may rightfully be compelled to perform.
So I recall a British story of liberty rooted in tolerance, the liberty that is necessary to uphold the dignity of each and all; reinforced by due process against the exercise of arbitrary power; best advanced in the modern world when we recognise the responsibilities we owe to each other; and now as a new generation expands the frontiers of liberty, also increasingly about empowering the individual to make the most of their potential.
Indeed, from more than a century ago, in the view of British thinkers - not just Green but Hobson, Hobhouse and Tawney - freedom could only be fully realised when society was prepared to overcome the barriers that prevented people from realising their true potential. Hobson put it as a question when he asked: So in this modern view freedom comes to mean not just freedom from interference, but also freedom to aspire - the opportunity and the chance to live a rounded life in which for everyone there is a place for choice and talent to flourish.
So I am in no doubt that our freedoms, our openness and tolerance, and our very enterprise and creativity which flow from these qualities - what we value about being British - emerge from this rich and historic tradition. Yet all too often on the political right, liberty has been reduced to a simplistic libertarianism in which freedom and licence assumed a rough equivalence, and the absence of government from public life seen as essential to maximise liberty - such as in the 19th century with the continued acceptance of child labour.
And some politicians of the left have mistakenly seen liberty at odds with equality and were too often prepared to compromise or even ignore the sanctity of freedoms of the individual. But these simplistic caricatures are unacceptable: In a world of increasingly rapid change and multiplying challenges facing for example a terrorist threat or a challenge to our tolerance democracies must be able to bring people together, mark out common ground, and energise the will and the resources of all. It is the open society that responds best to new challenges and we are fortunate in being able to do so by drawing on that British story of liberty.
Indeed, the components of our liberty are the building blocks for such a society; our belief in the freedom of speech and expression and conscience and dissent helps create the open society; our determination to subject the state to greater scrutiny and accountability sustains such openness; the reinforcement of civic responsibility and the empowerment of the individual gives our country the underlying strength we need to succeed in the years ahead.
And while some people argue that in this changing world the concern for liberty has to take its place behind other commitments, I am convinced that both to rebuild our constitution for the modern age and to unify the country to meet and master every challenge, we need to consciously and with determination found the next stage of constitutional development firmly on the story of British liberty. This will only be possible if we face up to the hard choices that have to be made in government. Precious as it is, liberty is not the only value we prize and not the only priority for government.
The test for any government will be how it makes those hard choices, how it strikes the balance. To claim that we should ignore the claims of liberty when faced with the needs of security would be to embark down an authoritarian path that I believe would be unacceptable to the British people. But to ignore the duty of government to protect its people - and to be unwilling to face up to hard choices - is the politics of gesture and irresponsibility.
In my view, the key to making these hard choices in a way that is compatible with our traditions of liberty is to, at all times, apply the liberty test, respecting fundamental rights and freedoms, and wherever action is needed by government, it never subjects the citizen to arbitrary treatment, is transparent and proportionate in its measures and at all times also requires proper scrutiny by, and accountability to, Parliament and the people. And so I want today to give you some examples of how in accordance with this approach we can, consistent with our security and the other priorities of government, do far more to entrench liberty in our constitutional settlement.
First, it is the British way to stand up for freedom of assembly, speech and press. Wherever and whenever there are question marks over the ability to express dissent I believe that the balance should be with those taking action to defend and extend the liberty of individuals and their freedoms to express their views within the law. So as I set out before the summer, I think it right - in consultation with the Metropolitan Police, Parliament, the Mayor of London, Westminster City Council and civil liberties groups - to review the law to ensure that people's right to protest outside the very heart of our democracy - the House of Commons - is not subject to unnecessary restrictions.
And the Home Secretary is publishing a consultation document on this issue today. Alongside this it is important, as the Government has made clear, that charities are guaranteed the independence and the right to have their voice heard and to campaign on the issues that matter to them.
In addition, there is a case for applying our enduring ideas of liberty to ensure that the laws governing the press in this country fully respect freedom of speech. The key is to achieve the right balance between freedom of the press, the protection of individual privacy, and public safety and security - and I now believe there is more we can do to ensure that freedom of expression and legitimate journalism are protected.
We agree with the Select Committee on Culture that a free press is the hallmark of our democracy, that there is no case for statutory regulation of the press, that self-regulation of the press should be maintained and that it is for the publishers themselves to demonstrate by their decisions that they can sustain and bolster public confidence in the way information is gathered and used. But for our part - and to make sure that in pursuing essential policy objectives like combating terrorism and tackling hate crime any new measures do not curb legitimate liberties to speak and be heard - Jack Straw, the Secretary of State for Justice, will investigate the idea of a freedom of expression audit for future legislation.
Last year, in a draft bill, we published proposals which would limit media access to coroners' courts. Having undertaken extensive consultation we have now decided not to go ahead with these proposals. No one wants to see criminals profiting from publishing books about their crimes. At the same time, we must ensure that the freedom of the press to investigate and report is maintained.
Our preferred option, subject to further technical examination, would be for the public to have the right through civil orders to recover payments made to people where these payments can be constituted as benefits of crime. The wilful abuse of personal data is of serious concern so there are proposals currently under consideration to clamp down on those who profit illegally from trade in personal data.
But Jack Straw has asked the Information Commissioner to produce guidance, in consultation with the Press Complaints Commission, to make sure we take into account concerns about the new rules - which allow for a prison sentence of up to two years. Clear guidance will make sure that legitimate investigative journalism is not impeded but that the sanctions provide a strong deterrent to protect individual privacy.
Because liberty cannot flourish in the darkness, our rights and freedoms are protected by the daylight of public scrutiny as much as by the decisions of Parliament or independent judges. So it is clear that to protect individual liberty we should have the freest possible flow of information between government and the people. In the last ten years in Britain we have created a new legislative framework requiring openness and transparency in the state's relationships with the public. The Freedom of Information Act has been a landmark piece of legislation, enshrining for the first time in our laws the public's right to access information.
Freedom of Information Fol can be inconvenient, at times frustrating and indeed embarrassing for governments. But Freedom of Information is the right course because government belongs to the people, not the politicians. I now believe there is more we can do to change the culture and the workings of government to make it more open - whilst of course continuing to maintain safeguards in areas like national security.
When anything is provided without cost, it does risk being open to abuse. However the Government does not believe that more restrictive rules on cost limits of Fol requests are the way forward. And so Jack Straw has decided, and has announced today, that we will not tighten Fol fees regulations as previously proposed. We do this because of the risk that such proposals might have placed unacceptable barriers between the people and public information.
Public information does not belong to Government, it belongs to the public on whose behalf government is conducted. Wherever possible that should be the guiding principle behind the implementation of our Freedom of Information Act. So it is right also to consider extending the coverage of freedom of information and the Freedom of Information Act.
And we are also today publishing a consultation document to consider whether additional organisations discharging a public function - including in some instances private sector companies running services for the public sector - should be brought within the scope of Freedom of Information legislation. Freedom of Information is not simply about current discussions within government but about the restrictions we place on the publication of historical documents. It is an irony that the information that can be made available on request on current events and current decisions is still withheld as a matter of course for similar events and similar decisions that happened 20 or 25 years ago.
Under the present arrangements historical records are transferred to the national archives and are only opened to public access after thirty years or where explicitly requested under the Fol Act. It is time to look again at whether historical records can be made available for public inspection much more swiftly than under the current arrangements. There are of course cost and security implications of a more open approach which we will need to examine thoroughly.
And we look forward to receiving their proposals in the first half of At the same time, we know that increasing the flow of publicly available real-time data about what is happening on the ground - whether about local policing or local health services - is vital in enabling people to make informed choices about how they use their local services and the standards they expect.
And even in the most sensitive sphere, national security - where everyone agrees that some safeguards have to be in place to respect confidentiality - it is right to consider the circumstances in which we open up more information for debate. For the first time starting later this year - the Government will publish, for parliamentary debate and public scrutiny, our National Security Strategy setting out for the British people the threats we face and the objectives we pursue.
New rules will also govern a more open approach to the working of the Intelligence and Security Committee and I have agreed with the Chair of the ISC that Parliament should have a clear role in the appointment of members to the Committee. The advancement of individual liberty depends upon the protection from arbitrary interference of the person and private property and, above all, the home.
I am aware of concerns that have been expressed about the powers of public authorities to enter homes and business premises without permission - powers that have been granted piecemeal over the years in pursuit of generally agreed public goals such as the protection of children, action against criminals - and, more recently, suspected terrorists. In the last year we have tried, in the interests of protecting the privacy of the home dweller, to regularise the circumstances in which bailiffs have permission to enter homes.
But I believe we can go much further. There are a surprisingly high number - at least - of provisions granting power to enter homes and premises without permission. This high number reflects how often they are drawn very narrowly - not least because of our traditional respect for liberty and privacy. While sovereignty was never absolute, its limits were few. Their violation affects other states only indirectly, and the idea that how a state treats its own citizens within its own jurisdiction is a legitimate matter for international concern was truly novel.
Illustrative of this approach is the long struggle to outlaw slavery, which initially focused on the transnational slave trade. Abolitionist campaigns within countries began to bear fruit in the late eighteenth and early nineteenth centuries, but the first international treaty that banned slavery itself was adopted only in The origins and growth of international human rights norms and what became the international human rights movement have been analysed by a number of scholars, and it is not particularly relevant to a contemporary understanding of the content of human rights to decide whether the meaningful internationalization of rights began in the s, s or s.
While some contemporary states continue to complain that international human rights norms violate traditional norms of state sovereignty, 4 sovereignty today no longer permits states to act any way they wish with respect to the treatment of individuals within their jurisdiction.
This fact is reflected not only in hortatory declarations and diplomatic speeches but also in practice. The UN and many other multilateral international organizations include the promotion of human rights within their mandates, and regional human rights courts exist in Europe, Africa and the Western Hemisphere. Every country in the world has ratified at least one of the nine global treaties adopted under the auspices of the UN; as of mid, more than states had ratified the two core conventions on civil and political rights and economic, social and cultural rights, respectively; 5 states had ratified the Convention on the Elimination of All Forms of Racial Discrimination; had ratified the Convention on the Elimination of All Forms of Discrimination against Women; and states had ratified the Convention on the Rights of the Child.
The UPR was adopted by consensus, and all UN members submitted reports on their domestic human rights practices and participated in the initial four-year review process. As implied by the first sentence of this article, however, the contemporary content of human rights is defined most clearly and most powerfully as law. The relationship of law to other regulatory or aspirational frameworks—politics, ideology, religion, social justice, equality or fairness, to name only a few—is a recurring theme of the present work.
The underlying assumption is that the status of human rights as law needs to be protected and that the distinction between legal obligations and other obligations of a moral or political nature needs to be maintained. This understanding of human rights as denoting international human rights law is necessarily narrow; it does not encompass every right that someone or some group seeks to assert. As discussed below in the section on the flexibility inherent in human rights norms, this narrowness should not be confused with uniformity in interpretation and application.
Law also provides i the best evidence of the content of human rights; and ii the best evidence of the essential universality of human rights commitments that states have actually undertaken. This approach does not seek to minimize the role of human rights understood more broadly as an aspirational moral framework that has inspired activists and ordinary people around the world. It also recognizes the political value that many governments have found in human rights, whether it is to promote them or to hold them up as foils for nationalist rhetoric that rejects any influence by foreigners on the sacred homeland.
However, understanding the role of human rights as law is essential if one hopes to clarify the other roles that human rights may play, as ideology, utopia or political weapon. Law can change, and international human rights law is no exception. Neither the Universal Declaration of Human Rights nor any other human rights instrument was handed down on golden tablets or otherwise revealed through divine intervention.
The continuing evolution of international human rights law is demonstrated by the adoption of numerous treaties at the global and regional levels that expand, nuance or occasionally limit the broad norms articulated in the UN Charter or by the Universal Declaration of Human Rights. New norms await further elaboration and agreement, and interpretations of existing norms may shift—just as many domestic statutes and constitutions acquire new meaning in order to respond to new situations and new problems.
We should welcome this process, although proclaiming too many new norms without ensuring that meaningful consensus exists within all regions of the world can be problematic, as discussed further in the section on new rights. The arguments that follow are pragmatic rather than philosophical, realist rather than visionary. The arguments also are premised on the proposition that international human rights law has had a positive influence on the situation of individuals across the globe and that maintenance and better implementation of that law should be encouraged.
Human rights are on the verge of becoming a victim of their own success. The result will be, ironically, to strengthen anti-human rights governments and others who have challenged the universal application of human rights by privileging cultural relativism over globally shared values. A few recent examples may be useful. Mainstream academics have called for the extension of human rights obligations not only to international organizations, but also to corporations, other non-state actors and even individuals.
Some of these initiatives or claims are morally defensible, indeed admirable, and calling for greater social equity or punishing soldiers who kill protesters is laudable and necessary. However, it stretches the imagination to believe that these issues were foremost or even present when the Universal Declaration of Human Rights was adopted by the UN General Assembly in Of course, interpretations of international norms change over time, and we should welcome the fact that we have a much fuller understanding of human rights than we did in The prevalent confusion between the responsibility of a state to protect human rights and the culpability of an individual who commits a crime is paradigmatic of attempts to infuse human rights into unrelated concepts, usually to the detriment of both.
International law has imposed obligations on individuals for centuries, and such criminal liability predates concern with international human rights and the obligations of governments to those within their jurisdiction.
It is difficult to see, for example, what punishing the pirate, hijacker, drug trafficker, terrorist, money launderer or polluter has to do with human rights. Of course, all involve harm to people or property, combined with widespread international agreement that punishing such acts need not be restricted by the normal limitations of state sovereignty. On the other hand, most harms are neither international crimes nor human rights violations, even if they may give rise to personal civil or criminal liability at the domestic level.
The rejoinder of many human rights activists is that only certain kinds of crimes are human rights crimes, that is, those that involve either widespread killing or particularly heinous acts.
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The most common examples given are genocide, war crimes, crimes against humanity and torture. However, the body of law concerning the first three of these crimes arose independently of and prior to the articulation of the human rights obligations of governments. The primary concern of human rights advocates, particularly in Latin America, has been to overcome the impunity of government officials who escape punishment for the crimes they committed during their reign. This view crystallized around the case of General Pinochet and his henchman in Chile, who granted themselves amnesties before leaving office after a murderous 17 years in power; a similar situation obtained in Argentina and elsewhere in Latin America in the s and s.
The conflation of criminal punishment with human rights violations deepened when UN negotiators began in to refuse to approve amnesty clauses in peace agreements that immunized perpetrators of internationally recognized war crimes and crimes against humanity. This categorical rejection of impunity for international crimes—as well as human rights violations—is heralded by many as a universally applicable norm, although such a position is unsupported by state practice and certainly does not constitute a norm of customary international law.
Amnesties enacted in different regions of the world may be subject to different standards. What is ultimately required is the much more difficult and time-consuming task of helping to change the behaviour of governments, and demands to put all human rights violators in prison may or may not contribute to this goal. Since the s, international crime and punishment have spawned hundreds of international jobs and cost billions of dollars, including the aborted trial of Slobodan Milosevic and the successful prosecution of many who committed crimes in former Yugoslavia and Rwanda.
A permanent international criminal court, based in The Hague, was created in , and countries had submitted to its jurisdiction as of mid No one believes that international law mandates criminal punishment for every government official who authorizes or tolerates religious or gender discrimination, denies free expression, or suppresses trade union activity, for example, although such acts certainly constitute serious violations of human rights and may also constitute crimes under domestic law.
The UN has not been immune to this conflation of human rights norms with criminal justice. For example, it may not be coincidence that the three most recent UN High Commissioners for Human Rights had significant experience with international criminal tribunals prior to their appointment; none had served on an international human rights body. Of particular concern is the increasing focus on international crimes and accountability on the part of the HRC and OHCHR, which are ill-suited and often unqualified to determine whether or not criminal violations of international humanitarian law have occurred.
Human rights can affect the use of force in two primary ways. First, severe or mass human rights violations may be utilized to justify the use of force by one state or coalition of states against another. The first issue involves jus ad bellum , or the legality of the use of force. The second implicates jus in bello , or the modalities of using force once hostilities have begun. In his book, Freedom on Fire: To lead effectively, in both the national and the global interest, the US must demonstrate its readiness to shoulder the full responsibilities of power.
Unfortunately, the vagueness, hyperbole and neo-colonial undertones of R2P may have the consequence of making it more, not less, difficult to reach consensus on criteria for humanitarian intervention in the future. As R2P continues to evolve within the labyrinthine corridors of the UN, what little potential the concept might have had as a catalyst for action is diminishing rather than increasing. Bush administration, at least, was that the USA should assist in replacing dictatorships with democracy—implicitly, anywhere it can.
With democracy would come tolerance and open societies, although the path to achieve these goals is strewn in Iraq with thousands of dead Americans and hundreds of thousands of dead Iraqis. The Obama administration has not been immune to resolving human rights dilemmas by force, although it does seem more reluctant to do so. The only authorization by the UN Security Council of the use of force by non-UN forces occurred to protect civilians in Libya in and was initially hailed as the high point of R2P.
By linking the new concept of R2P to the widely accepted principle of state responsibility for human rights, the Secretary-General and others risk undermining the latter for no apparent reason.
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Implementing human rights is difficult enough without the baggage of the responsibility to protect, and linking the concept of R2P with the law of human rights is unlikely to help either gain adherents. It is clear that human rights law applies in time of armed conflict, alongside international humanitarian law, a position upheld by the International Court of Justice in several recent judgments: As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: These interpretations have been reinforced by the European Court of Human Rights, which has slowly expanded its extraterritorial jurisdiction over state actions outside its own territory.
Finding that the detention was not arbitrary and was consistent with IHL, the Court found no violation of the European Convention. In a recent article, Gabriella Blum identifies the crux of the problem. Somewhat paradoxically, by making human rights violations within any single country a matter of international interest—and by deeming gross human rights violations a grave offence that implicate a duty to intervene on the part of the international community—human rights came to operate as both a limitation on war and a cause for war. For example, confiscation [of property] is allowed [under IHL] only for 'military necessity'.
And yet, once gender equality, aid, and reconstruction are made part of the goals of the war [in Afghanistan], no less so than chasing after Al Qaida operatives, it is unclear why confiscation of property for … [military necessity] should be allowed, while for … [the construction of a school for girls] it should not. Nor, for that matter, is it clear why that same goal of gender equality would not justify the use of armed force against those who are fighting against it ….
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After all, how can one weigh how many lives the rights of women in Afghanistan are worth? As Blum demonstrates, conflating human rights and international humanitarian law may not be such a good idea. Beyond the obvious concern of each body of laws to protect the rights of individuals, their purposes are quite different. While derogation or temporary suspension of rights may be justified in states of emergency, human rights law generally assumes that states exist in conditions of relative peace and that governments are capable of acting to effectively if not perfectly ensure rights.
IHL, on the other hand, is predicated on the existence of an armed conflict, and its major concern is regulating how that conflict should be conducted. We are left either with no law or the need to develop new law; the former situation would be disastrous, while the human rights hawks too often tend to ignore the latter in favour of rhetoric, character tweets and YouTube video appeals.
As the final quotation suggests, it is difficult, perhaps impossible, to balance the worth of one life against another. Even if an international consensus could be reached over the criteria for intervention—just the four crimes identified by the UN General Assembly or a lower threshold? Any decision to intervene will reflect national priorities, politics and capabilities, not only the extent of suffering of the victims.
However, this simplistic equation ignores another basic principle of international law that is held dear not only by criminals, but also by former colonies and less powerful states whose history has been one of too much intervention rather than too little, that is, the prohibition against the use of force that is one of the cornerstones of the UN.
Sovereignty has been limited by international human rights law for decades. The obligations accepted by states under human rights treaties are legally binding, not just political statements mouthed by the UN General Assembly. That they do not include provisions that would authorize invasion or bombings is not a weakness but a recognition of the fact that implementation of human rights norms is a complex, often long-term, process that cannot be accomplished by outsiders.
Using the protection of human rights as an excuse for bombs and forced regime change is almost never a good idea.
A properly defined international responsibility to protect—directed towards preventing widespread loss of life, whatever the cause—could be a meaningful advance in the humanization of international law. Just as it may be easier to punish individuals than to change governments, human rights activists often find it easier to go after softer, more readily identifiable, targets, rather than governments.
Oddly, they are rarely given credit for contributing to the fulfilment of economic rights when development goes well, but that lack of balance need not detain us here. A TNC may collaborate with a repressive government in many ways, and there is no doubt that many TNCs are willing to do so. The UN attempted on a number of occasions to address corporate responsibility for human rights, culminating in adoption of the Guiding Principles on Business and Human Rights by the HRC in Prior to that initiative, the General Assembly spent many years in the s and s discussing a Code of Conduct for Transnational Corporations, an initiative that eventually foundered on north—south divisions, continuing disagreements over the New International Economic Order that was proclaimed by the UN General Assembly in , 71 and a growing desire on the part of developing countries to encourage rather than discourage foreign investment.
The most rights-oriented attempt to articulate the relationship between business and human rights were the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted by the UN then Sub-Commission on the Promotion and Protection of Human Rights in Nonetheless, it was not politically feasible for the Commission simply to drop the issue, and it subsequently requested the Secretary-General to appoint a special representative on human rights and business, whose work over the next several years resulted in adoption by the UN HRC which succeeded the Commission in of the Guiding Principles on Business and Human Rights.
The Principles were drafted by the special representative, US Professor John Ruggie, after extensive research and a series of consultations with governments, businesses, non-governmental organisations and other stakeholders. The Guiding Principles look much like what one would expect from a decent set of guidelines articulating corporate social responsibility.
As noted above, they do not purport to extend the legal obligation to ensure human rights to business; for this reason, many NGOs were disappointed. This set the stage for dozens of cases filed under ATCA against both individuals and corporations for torts committed outside the USA any tort committed within the USA would be actionable under domestic tort law , as long as they allegedly violated international law.
While the responsibility of the foreign government is implicit in ATCA suits, even a successful case does not directly require the offending government to do anything. In addition, shifting the focus to corporations may make it easier for the government itself to shift blame for the harm. Further, the prospect of using corporations to control governments rather than the reverse raises serious concerns, and attempts to impose human rights obligations directly on companies whether foreign or domestic may empower just those entities—corporations—that are the least accountable and transparent of all.
Many other non-state actors—criminals, terrorists, armed opposition groups beyond the control of governments, intergovernmental organizations, religious groups and others—harm individuals. Given the limits on international enforcement mechanisms and the ultimate responsibility of states to control activities within their jurisdiction, it would seem better in the long run to insist that governments live up to their obligations to prohibit and punish certain conduct, rather than expecting international law to mandate corporate or other non-state conduct in human rights matters.
Bringing pressure on all political and economic actors who may be able to contribute to making the world a better place is a worthy endeavour. Ensuring that individuals, organizations and businesses that harm others are held responsible for that harm is laudable. Much of such work is related to the economic, social, cultural, civil and political rights guaranteed by international human rights law, but it also reaches—and should reach—much further, addressing issues of morality, social justice, equity and use of national resources, in order to enable individuals and groups to achieve a better life.
Both advocacy and the targets of advocacy enjoy rights that enable free choice on both sides; the outcome of advocacy is not guaranteed, except insofar as the human rights of all are ensured. Struggles between government and civil society are inevitable—this is called democracy, which assumes that disagreement among different segments of society is better than enforcing an artificial consensus that only consolidates the power of those who already exercise it.
Providing support, assistance, expertise and resources to government are an essential part of ensuring human rights, and we should not expect the private sector—whether business, religious or civil society actors—to accomplish or be held accountable for what is properly within the domain of government. Perfection was neither achieved with the adoption of the Universal Declaration in , nor with the adoption of the two Covenants in There is a great deal of room for new rights, and there have been welcome advances in articulating new international norms for minorities and indigenous peoples, to name only two recent initiatives.
However, the list of topics today addressed by the most important UN human rights body, the HRC, goes well beyond further explication or examination of adopted treaties and puts in sharper perspective the rights-inflation criticism. The early special procedures were concerned with physical security e. A number of socio-economic rights followed, including the rights to health, food, water, education and housing. One of the most questionable—yet universally accepted—of the new human rights is set forth in the UN General Assembly Declaration on the Right to Development, 97 the first Article of which proclaims:.
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
The issue is not whether poverty should be combatted but whether it is useful to identify it as a human rights violation along the lines of the simplistic Amnesty International slogan. For the reasons just mentioned, the answer is no, from both a pragmatic and legal perspective. Another issue frequently linked to human rights is protection of the environment, ranging from holding companies responsible for oil spills and other environmental degradation to asserting an obligation on—someone? Since most UN human rights treaties were drafted before environmental protection became a matter of international concern, there are few specific references to environmental matters, and environmental concerns are most often addressed as part of the rights to life or health.
More recently, regional instruments have referred explicitly to environmental issues. Everyone shall have the right to live in a healthy environment and to have access to basic public services. The States Parties shall promote the protection, preservation and improvement of the environment. As one leading expert on both environmental issues and human rights has stated, The substance of environmental rights involves evaluating ecological systems, determining the impacts that can be tolerated and what is needed to maintain and protect the natural base on which life depends.
Environmental quality standards, precaution and principles of sustainability can establish the limits of environmental decision-making and continue to give specific content to environmental rights in law. However, the obligations owed to humans—the subjects of human rights—are perhaps better articulated by continuing reference to existing rights, such as to health and life. Scores of countries suffer from varying degrees of official corruption, and the resulting damage to the economy, government accountability and rule of law can be enormous.
For example, requiring women by law to cover themselves and remain in every respect subservient to men violates the international human rights prohibition against discrimination based on sex. Such social constraints and attitudes are indefensible in a modern society populated by diverse cultures and traditions, and I believe that greater equality and tolerance of difference are likely to develop almost inevitably as societies modernize.
However, not everything that I or any other human rights advocate believe is mandated by international law. Tradition cannot justify the genital cutting of young girls, and continuing discrimination in work or housing based on caste or social status must be combatted. As societies evolve politically and economically, social mores and cultural norms also change. However, it is a mistake to try to squeeze all socially desirable progress into the human rights framework. Universal human rights norms do not mandate the degree of economic equality that a society should seek; they do not impose a particular view of relationships within the family; they do not tell societies how much to spend on guns versus butter; they say almost nothing about foreign policy and trade.
Each of these issues is important and perhaps even more important to most people than rights , but human rights provide only the context in which these difficult issues should be decided—a democratic society in which free debate is possible and non-discrimination guaranteed. Insisting that they do so undermines their ability to achieve their more limited but no less valuable aims and interferes with the need for societies to continue to reflect their different histories and cultural heritage, within the bounds of what is actually mandated by international law.
In addition, substituting the adversarial absolutism of rights language for the often more fruitful path of dialogue and open political debate may make it less likely that society will be able to arrive at viable solutions.
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There is a legitimate role for human rights advocacy to ensure that society does not limit recognized rights unduly or in a discriminatory manner, but treating rights as a comprehensive quasi-religious doctrine within which all answers may be found is nonsense. Few human rights are absolute, however, and the drafters of the Universal Declaration and subsequent instruments understood that rights may be legitimately limited by other competing rights or interests.
Among the reasons identified in treaties that may justify such limitations are protection of the rights and freedoms of others, public order ordre public , public health, public morality, national security and the general welfare. Of course, these terms are frequently advanced by states to justify violating rights, not simply limiting them, but their mere invocation does not free a state from upholding its human rights obligations.
Rights may be limited only if the limitations are necessary not merely convenient or desirable , imposed by law not just at the whim or total discretion of government officials and for purposes that are essentially democratic an authoritarian government cannot limit rights merely to keep itself in power.
In addition, human rights treaties subject states to at least a degree of international oversight, and it is up to these international bodies, not states themselves, to offer an opinion as to whether a limitation is justified and proportionate. Restrictions on rights imposed in good faith, for legitimate purposes, enable states to adapt universal human rights norms to specific local conditions. Fair trials must be possible under both common law and civil law jurisdictions. Humane prison conditions may vary from country to country, although a universal floor of minimum treatment may exist.
Priorities may need to be set when fulfilling many economic, social and cultural rights. However, the schema accurately portrays in a general sense the way in which international human rights law is translated into practice by states. Thus, universality does not, cannot and should not be equated with uniformity, at least in a world of diverse societies and sovereign states.