T20 – Enforcement Is Nine-Tenths Of The Law

The Right Rights’ Future

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T20 intro video – audio transcript.

What are the main distinguishing features of a person dedicated to human rights?

Activism: an energetic commitment to engage with the world, either on behalf of others or to assert – in common with others – rights of one’s own.

Empathy: a feel for the humanity of others, an ability to see others in the world as though you were they, a capacity for spontaneous solidarity.

Impact: the desire to make a difference, to achieve tangible outcomes – a freed prisoner; a humanely treated detainee; the previously hungry now well fed; liberation of a people from tyranny.

Impact is linked to achievability, as Paul Bernal and others of you remind us in your responses to track 19 (on which more later this week, in my final post).  The narrower the goal, the greater the likelihood that it is both achievable and can be seen to have been achieved.  But if they are defined in this way, human rights victories will inevitably be highly particularised, always peripheral to the main action in society – the small change of a state whose paper currency is power and inequality.

How do you drive forward large-scale change to achieve a better human rights future for all?

And linked to this, how do you sustain such improvements, protect them from future drift back into the failed space from which you have just managed to escape?

This track – the final track in our project – is about securing the right human rights future, and then keeping it.

I get to law at the end, but must first prepare the way.

Circles Of Belonging

A brief synopsis of my approach to rights:

The very core of the human rights idea is this propensity to care for others: summarised at track nineteen.

The first circle around this core is where we find the values that flow from the realisation of this propensity in culture: our commitment to equality of esteem and to the freedom of all to lead successful lives.

These values of equality and liberty are universal, natural and contingent.

Every culture has these qualities, however they might be described and however eclipsed they might be by circumstance – even the vilest place in the world has glimpses of them, albeit they might have been reduced to sporadic acts of heroism on the margins of overwhelming evil.  An evil polity is one in which the capacity to reflect the values of equality and liberty in public discourse has been obliterated.  And a good society is one in which they are given a generously free rein.

If we need a theory to be able to call one of these situations good and the other one bad, we can call it a theory of justice.  To me this is not much more than a description of why we ought to nurture the better part of our nature, to the advantage of other tendencies we might have.  I know philosophers tell us to be on our guard about deducing an ‘ought’ from an ‘is’ – they call it the naturalistic fallacy – but what should we do if there is nowhere else to turn, give up on morality altogether?  My theory of justice turns one part of what ‘is’ into ‘an ought’ and the other, (I say darker) bits of us into an ‘ought not’.

The second, wider human rights circle, which surrounds the values of equality and liberty (themselves enclosing the core of caring) locate these values in a set of principles which can guide a society on how it should realise these values in action.

Here we are getting closer to the human rights idea in concrete form:

  • The principle of respect for human dignity: to release the human flourishing that equality and liberty demand
  • The principle of representative government: to guarantee equality of esteem in the public sphere, with each of us counting equally as citizens simply in view of our being
  • The principle of legality: a necessary correlative of representative government and a hedge against violations of dignity, with only actions mandated by the people’s representatives  being allowed to the state

This is the right human rights model, a series of ever wider circles with our inclination towards goodness being buttressed by values and principles pointing in the same direction with ever greater concreteness.

The Politics Of Doing Good

Where do rights fit in this world of ever-broadening circles of instinct, values and principles?

Human rights flow out of this process of increasing specification.  They emerge as the finished product in an assembly line in which all the worker/creators agree in general terms about what they are doing but then argue vociferously about how best to go about achieving it.

In human rights, politics is this process of manufacture and human rights law its end result.

The people’s representatives approach the public forum with whatever words are to hand to promote their view of the world.  The human rights activist will deploy the language of rights to drive home the importance of action on the values and principles of good behaviour that matter to him or her.  Others might root their calls for action in different terms, words like ‘fairness’ and ‘justice,’ or even ‘community’ and ‘national security’.

There will be many arguments on the margins about how the various ideas behind these words might best be traded – in terms either of what they mean or of how they need to be reined in for the greater good of all.

Law emerges from this process of disputation.  The human rights activist hopes for laws which promote the values of equality and liberty and the principles of dignity, democracy and legality in which he or she believes. These are human rights laws: sometimes they are described exactly in these terms (like the UK’s Human Rights Act); more often the human rights dimension needs to be spotted in the substance of the measure itself, what it is aimed at and how this goal is in fact informed by the ideals of equality and freedom that lie behind the human rights project.

The human rights agenda is bound to be a radical one if pursued with honesty in the political arena.  It stands for a commitment to equality of esteem and a commitment to human flourishing which

  • demands a much leveller playing field on issues such as schools, housing and health.
  • sees immediately the disastrous effects of autocracy in the world and campaigns for democratic change to come from within such places, whatever the short term impact on the interests of our own country
  • indignantly rejects the brand of ‘muscular liberalism’ promoted by the UK prime minister in a recent speech in Munich as wholly destructive of the cultural aspect to identity which is such a part of human flourishing for so many.  (I was so affronted by this speech that I have devoted my last sidetrack to it, appearing at the same time as this essay).

In short: human rights gives us a way of looking at things in general, a perspective rooted in a moral theory, and an argument about what can best be done to make our society better – a political as well as a moral theory.

A Necessary Diversion

Law soon, but some necessary ground-clearing first.

I can’t end this project without once again addressing an issue that comes up time and again.

Is all this really global? Can there be universal human rights?

For human rights to be an authentic activity there have to be. But in saying this we must not fall into the trap of cultural imperialism. But nor should we simply cry triumphantly ‘Look at Tunisia and Egypt!’ and rest our case (though it is tempting).

How do we steer a path between the unreal ambition of a global rights’ absolutism and the quiescence of ‘anything goes’ relativism?

Here is how I think it works.

As we get closer to action what the values and principles that I have been discussing entail will inevitably differ, not only from place to place but (within a place) from culture to culture as well.  What we are after is what Ronald Dworkin calls the right attitude to the person.

Let’s take as an example some conduct which is said by those doing it to be consistent with human rights and by others not to be so.  How do we resolve this argument?  We should ask:

is the disputed action  driven by a bona fide commitment to the values of equality and liberty and the principle of human dignity?

If yes it is an action whose outcome we must respect even if it is not what we ourselves would have done.  The European Court of Human Rights has a legal name for this idea of respectful subsidiarity:  the margin of appreciation.  In English law, judges are familiar with the same kind of idea, Wednesbury Unreasonableness.  They understand that public bodies can do things they disagree with, but they cannot for this reason alone conclude that they are legally impermissible: it just happens to be stuff the judges themselves would have done differently or not at all.

It is the same with countries around the world.

The key to universalism is understanding there are two kinds of wrong: the wrong of ‘I would have done it differently’ and the wrong of ‘hey that is totally out-of-order’.  The first is about the right thing to do in a particular place, the second is about the right attitude to have: the first is locally sensitive, the second a universal imperative.

Tougher Than It Looks

And so, it is clear that with human rights it’s not true to say that ‘Anything goes’.

Sure in a good society there will be near agreement about the centrality of equality and liberty – the argument will be about detail, with the attitude being taken for granted.

However this is not always guaranteed to be the case.

Sometimes to keep the right attitude the human rights themselves may need to be downplayed, or even breached

How can this happen?

Well there is an obvious risk of an open society being transformed from within, of people using its freedoms in order to grab the power then to transform it.  In order better to protect itself from this moral calamity, many such societies simply do not allow the participation of anyone dedicated to an entirely different version of truth and goodness: to racial or gender supremacy for example, or to a political system driven by self-appointed elites (military; communist; theocratic), or (increasingly) to a point of view which regards certain kinds of sexual expression as intrinsically flawed and for that reason worthy of punishment.  These kinds of wrong attitude bar entry to the body politic in many good societies, either as a matter of culture or even in some places as a matter of law.

So here is the first point, a human rights respecting polity has an entry test, only those with the right attitude are allowed in. It manages its polity to ensure that it accords with principle and human rights values even if this seems to breach human rights in particular cases.

Sometimes though it is the right attitude itself that is itself put under strain by events.

Suppose that laws with entirely the wrong attitude escape the process of manufacture unscathed – maybe the political situation has become desperate and decent people have panicked, or supposing that usually good people have succumbed to pressure to yield to their dark side.  In other words in the language we have been using here, a good society is drifting to the bad, the right attitude is becoming less easy to take for granted, more often honoured in the breach than in the observance.

The Law To The Rescue?

Many feel that the law has an important role in both these scenarios, as a defender of the process of democratic decision-making even from the democrats themselves.

This is where I part company with many proponents of human rights.

The temptation is to say, ‘let the courts protect us – the judges can act as our ethical referees, stopping us from breaking the ethical rules which underpin our political game’.  Ronald Dworkin for example has consistently taken this line.

I think this is well-meaning but ill-advised, on two scores.

First, it is ineffective – judges cannot stand aside from the crowd indefinitely. Even with the best will in the world they are bound to succumb eventually, or be removed.

And second, relying on judges like this impoverishes the body politic by removing the seriousness that flows from its capacity for uncontrolled action.  A political system overseen by judges lacks the depth that flows from an awareness that its decisions have real consequences. Politics becomes like a nursery game played with nannies stationed at every exit ‘in case the children go too far’.

As the great American judge the beautifully named Judge Learned Hand once said ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.’

Enforcement is nine-tenths of the law.

And enforcement is not just about police and zealous officials.  It’s about how we respond to laws, in our hearts as well as our minds.

I am confident enough that given an equal playing field, the human rights story is a persuasive one which will win out on the day. Liberty will stay in the heart if it is given a chance to make its home there. Laws like the UK Human Rights Act play a part in embedding right attitudes – but they must never do so at the expense of free and full debate, must never seek to close down discussion by appeals to truth outside the debate.  It is because the Human Rights Act does not do this that I think of it as a model piece of human rights legislation: see T7 – The Right Rights’ Model.

However I must go back to the first scenario mentioned above –  can we trust the political system to police itself? Should courts at least be able to protect the good health of the democratic system itself, the civil and political rights that are essential to its proper operation, even if they are rightly not able to evaluate outcomes for human rights consistency?

They may not be driving the human rights car to any particular destination, but surely they are responsible for ensuring that the vehicle is working properly and at least staying on the road?

This is trickier.

Many scholars unimpressed by substantive interferences with policy by the courts have found attractive this idea of the judges as referees of process rather than of play: John Hart Ely’s Democracy and Distrust is probably the most famous.

It’s a seductive idea – the courts ensuring that politics is fair and then keeping it fair – ensuring that the votes are equal; that all those entitled (eg prisoners?) get the vote; the constituencies are fairly constructed; the playing-field of political interaction remains level during election campaigns; the legislative process does not become suffocated by money-interests; and much else besides.

It is not just this list, it’s the ‘much else besides’ that worries me.  How far would this need to go?  The guardianship of process sounds fine in theory but in reality it is likely to be messy, conflictual and highly political.

In the end I think that the protection of the integrity of the political must also remain within politics.  My colleague at LSE Grégoire Webber has written a very good book along these lines.

Of course as human rights campaigners, we must argue for a better and a fairer and a less money-oriented political process.  We must argue for legislation which helps transform the process into one in which each voice truly counts as much as any other.

But there are no short cuts.

The law must always be a messenger for our thoughts, not take their place.

This right rights’ future is a matter for all of us. Law is a vital instrument but politics is inescapable. Conor Gearty

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15 Responses to T20 – Enforcement Is Nine-Tenths Of The Law

  1. I fully agree with the concept of two circles of rights; while the principles of human dignity, equality and liberty must remain steadfast, they must be used with respect to their local applications. Otherwise, human rights would be a case of high-minded, well-meaning individuals forcing their own beliefs onto others with no regard for daily practicalities. However, a balance must still be drawn here between these basic principles and the situations to which they are applied, and this is where many, if not most, ECtHR cases end up. There is no easy answer to this question, and it is one that will probably be revisited in almost every individual application.

    On the other hand, I am somewhat concerned about the analogy of human rights as the final product of a manufacturing process. I’m not convinced that our definition of human rights can ever be finished. While we need human rights law and declarations of our consensus in order to apply human rights and actually do the work on the ground to make them a reality, I think it is also necessary to constantly question our beliefs and understanding of what human rights entail. Our understanding of the social world has changed dramatically in the past century, and it is likely it will equally change in the next century, leaving our current conception of human rights behind (the paradigm examples of it would be women’s rights or rights to sexual identity) . As the world changes, we must change with it, and work to improve our understanding of it and each other.

    This post is a fantastic ending to the project, and I very much hope that the debate can continue past Thursday. Thank you, Conor, for getting all of us involved.

  2. Malcolm Ramsay says:

    I only learnt about this project on Friday, and haven’t had time to read more than about a quarter of the tracks …. but I’m going to post some thoughts anyway.

    Conor says “I am confident enough that given an equal playing field, the human rights story is a persuasive one which will win out on the day. ”

    I would say there’s an important underlying point here which often gets overlooked; the fact that many issues are only as problematic as they are, because they exist in a world where the playing field is hugely tilted. When people are denied fundamental economic rights they also lose much of their power to assert themselves in defence of other rights – when they regain those economic rights, they will also be empowered in a wide range of other areas.

    From this perspective I have to disagree when he says that “[narrow] human rights victories will inevitably be highly particularised, always peripheral to the main action in society”. Although it’s broadly true, I’d say there are a few relatively small changes, in crucial areas, which have the power to fundamentally transform the social landscape – not overnight, but hugely over the course of one generation, and completely over the course of two or three. And in answer to his question “How do you drive forward large-scale change to achieve a better human rights future for all?”, I’d say: by understanding what features of our existing system deprive people of those crucial rights, and concentrating on fixing those specific flaws.

    “And linked to this, how do you sustain such improvements, protect them from future drift back into the failed space from which you have just managed to escape?”

    A key factor here, I think, is to recognise that, in the developed world at least, many problems are rooted in existing laws which compromise the rights of some by giving rights to others which, in a just world, they wouldn’t have. If we try to address this with an additional, mitigating, layer of law, we end up with a system which gives with one hand and takes with the other. In that situation, the privileged are constantly fighting to roll back those mitigating laws, which they perceive as taking something from them which is theirs by right. But if we address the root of the problem, and amend the primary laws – so that those unwarranted rights are not granted in the first place – then that problem is avoided.

    The most obvious flaws in our current society, to my mind, lie in the laws and customs which determine how rights to land are transferred between generations (sorry if I’m getting too specific here – this really belongs in track 8). Land is uniquely important because we cannot sustain life without it, and for practical purposes there is no activity we can engage in without using it. Those who control it and can deny others access to it, have a hold over everybody else which tilts the whole economic and social landscape in their favour.

    Zoe Fiander touched on the answer to that problem, when she said Alex’s view “would be well and good if the reset button was pressed after every generation”. The key to it, I believe, is a shift in perspective; our power to bequeath our property when we die should not be seen as a right with which we can indulge our offspring, it should be seen as a responsibility which the state delegates to us, which should be used for the common good. I think it’s quite possible that the courts (in this country at least) could be brought to that view, which I think would open the way to establishing a birthright to land …. but perhaps as important is binding ourselves to it as individuals.

    That brings me back to the broader canvas and Conor’s theme for this track, which “is about securing the right human rights future, and then keeping it”. I want to live in a world where people choose to be respectful of others’ rights – but I want that to be an exercise of free will. There certainly needs to be a set of minimum standards which people should be punished for violating – and in that respect there’s undoubtedly huge scope for improving what we currently have – but we cannot secure the moral high ground if we, as individuals, retain the right to behave as selfishly as the people we complain about. If we want to build a superior society, we can’t insist on government imposing our high standards on people who don’t consent to them …. but we can, and should, ask it to impose them on us: we can establish a voluntary society whose members covenant with each other to live by higher standards than the common law requires, with sanctions – enforceable in the courts through contract law – for those of us who fall short.

    It might not be obvious why that’s important, but the world is full of disillusioned idealists who wanted to change the world in their youth, but have found themselves, as the years go by, too caught up in living to keep up that idealism. If it’s easy to sign up to a cause, it will be easy to abandon it as well; but if people make an irrevocable, legally-binding commitment, that would create a sense of separation which would serve both to protect them (to some extent) from slipping back into lower modes of thought, and to substantiate (to some extent) their claim to speak from the high ground.

    As I see it, Justice is the child of Law – the very concept of it depends on the existence of a framework of (possibly arbitrary) law. The society we live in was built on foundations which were laid down centuries ago for purposes which are inimical to our goals. It has developed to the point where it can recognise its own shortcomings, where it can acknowledge the validity of higher values than it was founded on – but it cannot abandon its own foundations, and they will not support the society we aspire to. We need to create new foundations – ones which are consistent with the existing legal, economic and social infrastructure, but which will take the weight of a society built to serve everybody rather than just a privileged few.

    That’s my answer to how we should go about “securing the right human rights future”; we must build a new society – on new foundations – and swallow the old one from within.

  3. Paul Bernal says:

    Conor, as someone who still struggles to describe himself as a lawyer (probably for very good reasons) the whole business of the role of law in the process is something that seems to me to be both fundamental and incredibly difficult to pin down. I swing from side to side on the issue – but perhaps there’s nothing wrong with that, because could it not be that the role of law in the process is itself not something static or certain, but something that changes depending on the context, on the time and place, on the political situation?

    One more issue that has been discussed here before, but which I don’t feel has been completely resolved and relates very much to the enforcement/law debate – what about sovereignty and ‘international enforcement’? With the idea of peoples’ rights being perhaps the most contentious of the whole debate on The Rights’ Future so far, perhaps international enforcement is a step too far even to discuss, particularly in the context of the generally spectacularly misjudged (or mislabelled) attempts at military interventions for the purposes of human rights. Nevertheless, looking at what is going on in the Iran right now, what role do and should people from outside a country have in helping to achieve their wishes? Bland statements from the likes of Hillary Clinton in support of the protesters don’t really seem like enough – and indeed, coming from the US they smack of something quite different from human rights. Does that mean we should sit back and do nothing?

    • As for your first point, Paul, I’ve been struggling with the exact same thing. It is tempting to see the law as a comfort blanket, to protect us when things go wrong and will make things better again. However, the law can also cause more problems than it solves, by trying to put something in writing that cannot be agreed on or cannpt be enforced.

      I think the law has its place once there is a system in place to support and enforce it, but in places where the legal system is not working for the good of the people, and is only enforced at the whim of the powerful, then we need another option. This is why I am tempted to agree with you in that the role of law should depend on context. The law is a useful tool when it will be used properly, but perhaps another option is to get people to respect each others rights out of respect for each other and society, however idealist this may be.

  4. Richard Buck says:

    I agree that securing human rights is mainly going to have to be done within the political process, and that representative government is the surest way to insuring human dignity within a country. However, Conor’s penultimate sentence is the key to a political system reaching the correct human rights decisions: “the law must always be the messenger for our thoughts.” The political culture must be one where democratic abuse of minorities is not tolerated and dissent is acceptable. It must ingrain a deep respect for the rule of law. Malcolm Ramsay rightly observes that western political systems rest on foundations built by the powerful to insure continuation of their dominance. He calls for a new society, built on new foundations. I am amazed, rather, that political cultures emerging from that feudal foundation have supported and expanded human rights. In the West, we do not have to go back to square one to correct inadequacies in human rights support. But will this human-rights-friendly political culture emerge elsewhere? If so, are we willing to wait centuries for it to evolve?

    We can’t wait. As Conor suggests we have to find the golden mean between “global rights absolutism” and “quiescence.” Paul Bernal is correct in noting that “bland statements” from the likes of Hilary Clinton do not work, nor does military intervention. We might start with being a good example, giving tangible support to good regimes and denying support to bad regimes. The United States has propped up the Egyptian dictatorship for decades and applauded democracy only after the people took to the streets. The West has got to be a little quicker in endorsing democracy, and military aid should only go to robust democracies.

    I am concerned that democracy is often not the friend of difference and dissent. Conor doubts that the judiciary can be their protector. It is true that the judiciary eventually succumbs to the popular will. But it can be a buffer for a time. As an American I am fond (perhaps overly fond) of what we call “separation of powers.” Branches of government balance the more extreme predilections of each other by constitutional mandate. Not only do the executive, legislative and judicial branches have separate powers, but the legislature has two very independent bodies. To break up the power scene even more, the U.S. has a federal system where states are supposed to have powers denied to the central government. This does not always work to the benefit of human rights. The sovereignty of states extended de facto slavery in the U.S. by many decades. I am not pushing the United States as the best model for representative government. But I think it is important to have multiple power centers in a society, so that one element cannot rule absolutely.
    Among the possible multiple centers of power are labour unions, religious organizations and universities. The human rights strategy should enlist all these types of organizations in the campaign. Labour unions particularly can be a strong vehicle for promoting human rights—both for their members and for society generally. Both unions, and religions can cross political borders in promoting the human rights agenda.

    Watching recent events in Tunisia, Egypt and Iran I am stuck by the importance of one aspect of representative democracy: governments are changed on a regular basis. Long serving dictators have been the scourge of human rights, and most of them have looted their countries as well. Maybe presidents should be offered lucrative university posts in prestigious western universities if they quietly step down when their terms are up. I am sure they would have a lot to teach us.

  5. Adam Brown says:

    We have, only recently, exited from the most violent century, perhaps in human history. The 20th century has been marked by genocides, warfare and remarkable advancements in human technology. ‘How is this century to justified and reflected upon?’ This has been a question academics and others have had to struggle with. Human rights provides the normative language to explain our civilisation, world and the events of the last century. Or the normative language of what not to do.

    As Francesca Klug has rightly argued, human rights are indeed ‘values for a godless age’ but they are more then that. Conor, I agree with much of what you’ve said although I don’t believe human rights are something that can be universalised. As Costas Douzinas has argued human rights have, in many ways, been expropriated and used by the West to further an ideological aim – capitalism and liberalism. I think there needs to be recognition of this and that there is an element of ideological imperialism involved. But also, that this imperialism is worth fighting for. A society, for example, could just as easily use the language of human rights in a negative way, ie. the right to kill, the right to suppress freedom of speech, the right to state surveillance. I think the notion of human rights developed in the West needs to be accepted first and defended against those who argue for cultural relativism.

  6. Alice says:

    I agree with Adam that there are strong human rights arguments against cultural relativism (or, to put it less confrontationally, ways of making human rights practice more culturally-sensitive and aware of its context).

    Both rights and ‘culture’ are sites of struggle for power, and there are invariably gaps between those who speak for a culture and those who ‘live’ it, or are silenced by it. I think the particular contribution of human rights is to permit a fair fight between these competing voices, to render visible those who are excluded and to provide a framework for balancing competing claims while protecting the most vulnerable.

    It must also be noted that universalist condemnations do not necessarily point to universalist prescriptions. Universal frameworks cannot shrink from applying moral rules to all societies; yet, as Conor notes, rules require interpretation in diverse contexts. Regional human rights instruments may go some way to bridging the perceived ‘legitimacy gap’ and be more likely to build on local movements of resistance.

    Most importantly, I think we must distinguish disingenous talk of ‘universal rights’ by Western powers from the appropriation of human rights language by those local movements of resistance. In other words, although human rights language can be horribly misused in the service of reactionary projects (as can ‘culture’), I’m not sure that they can be imposed as such.

    People who make a human rights claim for themselves or on behalf of others may have different motives: finding an international audience for local problems; reconceptualising problems as being caused by structural conditions rather than simply violations of personal obligations, or boldly redefining prevalent behaviour (such as wife beating) as offensive and aberrant rather than ‘normal’.

    The relativist charge of human rights imperialism doesn’t quite disappear: as Sally Engle Merry has said, global perspectives are translated ‘down’ from the halls of the UN more than grassroots perspectives are translated ‘up’. I think the message for human rights proponents is that we need to avoid the Platonism which assumes a global normative consensus around revered texts, and be endlessly pragmatic, always negotiating the tension between the need to go with the cultural grain and the need to speak universally in a world of pluralism. But the central point is that rights are not to be bestowed or imposed; they resonate loudest when they are claimed – as by the protesters in Tahrir Square – and where they are invoked as a direct challenge to inequalities of power.

    • Christina says:

      Excellent response. Especially the final sentence. we should not fight for rights, they are there to be claimed, not imposed, and Tahrir is such an example. Yet we’ve to see how this plays out.

  7. Christina says:

    I wish I had your faith in the governing system and the application of law,
    Other wise we are in complete agreement on all point, except, as Iv’e said before, you don’t take account of women, or the important role of the media.

    My last post was summary of all the really important points in which I believe.
    I didn’t realize there was more to come, so I’ll take this opportunity to start with the personal.

    When I was young, we were taught that aboriginals “abos” didn’t understand “Western civilization” because they were stone age peoples , and to they wouldn’t understand what a vote was about.
    We were taught that the only people not allowed to vote were aboriginals and convicts.

    So it amuses me, the irony, of finding myself listening to the reason why prisoners should not be able to vote. Stone age thinking, or protecting the Oxbridge male who governs? Who runs this country Europe, or parliament which so represents the British people?

    Strangely, it seems that the so called stone age people had a better attitude towards the planet , the land, not only could they use it to find water, food, and lost people. But they had a belief that land needs to be managed and respected. Perhaps 21st Century people? They still have a life expectancy of round 40 years, something I’m seems proud of.

    I left Australia because of the White Australia Policy, to ironically find myself in a country just about to institute such a policy. But being English it’s never overtly stated. The immigration cap doesn’t affect the Eastern European, white, but only Commonwealth countries, brown and black..

    I grew up in the Jewish quarter, surrounded by people with a number on their arm, so it was difficult not to be aware of human rights, even if we didn’t apply them.

    People who said “We never speak German again, Look what our country did to us, we are Australian now, and speak English.” You have a right to repudiate your country , language and heritage, but no government has the right to ask you to do it.

    I discover that I’m doubly invisible!! (If not triple). As a woman I’m invisible, and women are rapidly becoming dis-enfranchised via poverty and homelessness, not to mention trafficking.

    I thought I came from a developed country, Australia, but apparently the “global south” represents something else, I’m not sure what, poverty, lawlessness?

    When it comes to the global, human rights has to take a shift. As Margaret Atwood, great environmentalist novelist and woman said
    “After 4 days without water, human rights become irrelevant”
    And the speculators pushing up global food prices , so while we buy more food than we can eat, and religiously re-cycle “for the planet” the starving millions, have even less “right” to food. What’s the carbon footprint of the new jets we’re selling, the carbon footprint of a cluster bomb or child-disabling land mine?

    I won’t apologies that this has become a rant; the topic of entitlement to human rights should make us angry, should make us question and debate, should make us consider in what why we can make a real contribution.

    Massive “respect “ to Conor for starting this exciting, new, dialogue, and congratulations to all who engaged and struggled with with it.

    We’ve all learnt an enormous amount, and clarified our own beliefs and raised more questions. Which is why I don’t want to see this end. Visionaries and thinkers are what ivory towers are for, and we need them to lead and stimulate the debate, as much as others may take to the streets. My personal mission has been to raise the profile of the invisible women, drawing attention to the injustices, through my interviews with women like Dame Anne Owers, Chief inspector of prisons, who is appalled at the over crowding, the punitive system, the fact that women sent to prison are 4 times more deprived than the men, losing home, partner, children and the social network which supports them.

    The argument against capital punishment is that even ONE mis-carriage of justice, means an innocent man hanged. So with votes for prisoners, remand, or innocent, or convicted of a minor crime such as domestic abuse, how many of these people fall foul of the justice system AND lose their vote?

  8. Activism, Empathy and Impact are the characteristics that Conor thinks distinguish a person who is dedicated to human rights. Energetic commitment, a capacity for solidarity and a desire to make a difference. Conor also comments that the “human rights agenda is bound to be a radical one if pursued with honesty in the political arena.”

    The question which comes to my mind is how one makes the link between people who are dedicated to human rights, and an enduring human rights politics – or better still, an enduring general political environment which is undergirded by human rights.

    I am sure we have all had the experience of being fired up and deeply involved with this or that cause or struggle – only to see the fire go out and our own capacity for commitment weaken. For human rights to endure they need to be translated from the passion of individuals and groups of people into the very structures of society itself.

    The risks here are very large – any number of radical reforms over the years have ossified into conservative privilege. The law is both a key device but also a great danger – and by itself it is not enough. Many people argue that the success of human rights in the west has made it a failure, in a paradoxical sort of way – that when institutionalized it becomes yet another tool at the disposal of our would be political masters, able to be twisted to preserve their privilege and extend their power in ways which are far from its intention.

    And so we come full circle – for it seems to me that the only way to counteract this is by being the sort of people that Conor describes, active, empathetic and desirous of making an impact for the betterment of people like us – willing to jump into the fray and hold our society and its institutions to account. Such passions keep us on the alert for the ways in which liberal democratic institutions, as much as less desirable ones, harm and oppress the people they purport to serve. The challenge is in making sure there are enough such people to keep the radicalism of human rights alive. We have Conor to thank for being a part of addressing that challenge by forcing us to engage with these questions again and again!

  9. Richard Buck says:

    I very much agree with Alice that ‘rights are not to be bestowed or imposed: they resonate loudest when they are claimed.’ So our human enforcement tool kit will include all manner of mechanisms for gentle persuasion, setting the example, encouragement and perhaps enticement. We seem to all agree that military force will not be a part of the human rights professional’s kit. However, I cannot leave Track 20 without addressing the types of situations where force may be the correct option. When I use the term ‘force’, I mean both military intervention and economic sanctions.

    Economic sanctions should not be broadly applied to any nation in any circumstance, because they usually hurt the people a lot more than the leadership against whom they are intended. Sanctions must narrowly target the leadership and possibly their supporting military apparatus. Even so, such economic sanctions have not demonstrated their effectiveness.

    There are two types of situations where military force would be the only option for human rights enforcement: genocide (Rwanda, 1994 and societal chaos (Somalia, now). Military intervention even to prevent genocide is a slippery slope so extreme caution should be exercised in its use, yet, the circumstances of genocide may require immediate action. Although time and political constraints may dictate that it be undertaken by a single nation, it should be authorized multi-nationally by regional bodies such as ECOWAS, or by the UN, reflecting a consensus among nations on the need for it. The justice of the action should be tested against just war doctrine. Two jus ad bellum criteria are particularly important to avoid creating more misery: the expected results must be proportionate to the amount of violence that will probably have to be used; there must be a reasonable hope of success. Once military action is initiated, the jus in bello guidelines must be religiously followed. The appalling statistics on civilian casualties in Iraq and Afghanistan should be sufficient to cool the ardor for war of the most recalcitrant militarist. The biggest problem with military intervention is not the immediate action, but the long-term protection of the targeted population. The world community should be prepared for a long and painful stay in the invaded country.

    The other use of military force would be in circumstances of societal chaos. Without protection of the person from violence, there can be no human rights. Again the just war doctrine must be rigourously applied to the decision-making, and it is easy to get involved in a civil war. It may be that we will have to let the forces of history play out in the country and focus our attention in preventing outside countries form intervening for their own advantage.

  10. Christina says:

    I tired to access the site the same night as the opening lecture, but couldn’t find it and by the time I’d got on, we were into track 3 or 4.

    Activism,, empathy and effectiveness. Absolutely. I am so much in agreement with nearly everything you say, but have problem with the initial proposition on which your whole case rest, that of social democracy.

    A human rights lawyer colleague, said that Democracy had failed Pakistan.

    John Kampfner (Index on Censorship ) says that Democracy, has become consumerism, which is our fault. When you hear how commodities are rising driving millions of people into starvations, I have serious questions about democracy.

    It seems that your problem with the law is about whether it is a good defender of rights, and that the state might be better? But between them might there not be a balance? But in terms of representation the state is just as unrepresentative of the poor man at the gate, or woman or black as is the law particularly at the level of the supreme court. One woman of 11, no black people, un elected, and stay till they die!

    The legislature, the coalition govt. was voted in by default! Has not a mandate to govern, and was elected on a pretty poor turnout.

    The same goes for the executive, and I never thought to hear myself defending the second chamber, but between all 4 there is some possibility of balance particularly as relates to AV.

    (It was AV which kept the conservative in power for 25 years in australia, because the country party and the catholics places their vote behind them. Be careful what you wish for!)

    It was an incredible feat to have a meeting in which the “w” word was omitted entirely? Even Alice asking who was the “we” neglected to mention that it is largely made up of women, who under the cuts, are likely to become destitute, homeless and therefore dis-enfranchised.

    Inclusivity, and balance, the two go hand in hand. And there were no black people at the meeting, couple of brown, one or two women in headscarves, But that was all. That there were more women contributors was probably down to the chair , who was pretty even handed.

    I have to agree with Holly when she said making rights, right or left alienates, and excludes some people It’s always the woman’s position, conciliation, and inclusivity go hand in hand, and Alice followed on the point.

    So I found myself abstaining because I can not acquiesce to your first and fundament proposition of social democracy, and yet (apart from trees) am in total agreement on every thing you say.

    I am receiving email from the Egyptian Drs, at the hospital in Cairo, asking that Mubarak’s money be returned to Egypt, asking us to sign a petition, and stating that they are proud to be Egyptian. Is forwarding their request, a form of activism, of being effective on human rights? Here is the url:

    http://www.gopetition.com/petition/42742.html

    Best wishes, and thanks for a great day.

  11. Kate Donald says:

    I commented on the first post, so I’ll comment on the last! I’ve been following this project all along but alas have not had time to contribute again until now. Thank you, Conor for all your thoughts. I hope last night’s event was a success; I was sorry not to be there.

    Just a few points in response to this excellent last post:

    1. Empathy is, for me, the real key to human rights. As human rights activists/advocates, we must concentrate on fostering and spreading empathy – definitively a political project, and one to which David Cameron’s ‘multiculturalism is dead’ speech is singularly unhelpful.

    2. The necessity to keep politics fair, as you mention in this post, is imperative.
    “We must argue for a better and a fairer and a less money-oriented political process.”
    Yes – to remain relevant and effective, human rights must engage more with economic power and inequality, its role in the political process, and the implications this has for equality more generally, especially in terms of political power and speech.

    3. To my mind, the current biggest threat to the human rights movement and the uptake of human rights is the idea that they are for ‘other people’. This idea can manifest itself in a variety of ways. In the UK, it is all too often the pernicious Daily Mail-type view that human rights are something for prisoners, asylum seekers, wannabe terrorists, minorities etc… used to give them unfair advantage over ‘the rest of us’. In some societies, from bitter lived experience, desperately poor and downtrodden people may believe the opposite – that human rights are a far-off dream, attainable only for the rich. The idea that human rights are for others is also frequently manipulated by governments – “Oh, those things aren’t for us – they are for those patronising neo-colonialist Westerners – our society is different, we don’t need human rights…”.

    As Alice indicates, this is partly why the events in Egypt were so heartening. A whole host of people, standing up and saying that no, no matter what their government says, human rights ARE for US, and here is our interpretation of human rights, and this is what we want. A much-needed reminder of the radical and revolutionary potential of human rights, their power and intrinsic universal appeal.

    We must continue to nurture and spread the idea, in our own societies as well as abroad, that human rights are for everyone, are relevant to the daily lives of every single human being around the world, and they are there for the taking, although of course the process will be long, hard, bitterly fought, and possibly even dangerous. And yes, of course politics must be the conduit and the forum for such a fight. (I agree with you Conor that law is and should be instrumental, a potential support to the political process, not the mainstream or the end goal.)

  12. Duygu Akdag says:

    I agree with Conor that lawyers and judges are not very effective in the mission of protecting Human Rights and believe that the greatest protection is guaranteed by actually exercising them in the society. A friend who had been detained and tortured by state security fled to Switzerland. 10 years later, she won her case against Turkey in front of the ECtHR, which found ill-treatment. She has never received the 10,000 euros she was awarded as compensation. However, the absence of financial compensation for the physical harm visited on her by her torturers pales in comparison to the personal pain of separation from family and friends. She was a student when she was arrested, but her studies ended that day. Meanwhile, another friend tells me the price of a poor citizen’s vote in Kenya is the equivalent of a few pounds and a bag of rice. Examples such as these shape my thinking on the realisation of human rights. It is undeniable that the possibility of enforcing human rights in a court adds to their protection, but legal enforceability as the sole criterion of realising justice is too narrow a concept.

    When human rights come into the political process, they need to be understood and exercised socially and politically. There is great meaning in the broad exercise and acceptance of rights, and this is not achieved through the courts alone. Protection requires practical and fair enforcement mechanisms. Costly litigation makes a system inaccessible to those who may be in the greatest need of its protection. With its limited power and capacity, it can become overwhelmed.

    After violation, a right suffers a decrease in its meaning, not a surge of meaningfulness. What’s more, courts can award compensation in the form of money which does not create a situation where it is as if damage had not taken place. Money cannot compensate adequately for the loss of the condition enjoyed prior to the violation of the right. It is essential that society and public duty bearers enforce rights too. Putting democracy and human rights into practice occurs outside the courtroom as well as inside it.

    The Koran says you should carry your wife in your hands and love and care for her. But culture may deny equality and permit abuse. Many women after having been suppressed for their entire life come to believe that they have lower value than men. If this suppression of women is not perceived as unequal treatment should it be culturally justifiable and therefore not regarded as a breach of human rights? Who will decide whether a breach of human dignity, equality and liberty took place if these rights mean different things in different cultures? The margin of cultural appreciation and the argument of cultural imperialism should not be used as an excuse for not complying with human rights or for not providing international help.

    Thank you Conor for your inspiration and engagement in creating a space for everybody to share their views on essential questions in respect to human rights.

  13. Craig Valters says:

    Human rights are radical not necessarily because of what they are but because of the world which we apply them to.

    I find this both exciting and demoralising in fairly equal measure. It shows there is great work to be done but huge obstacles in the way.

    I’ll end on something I feel is crucial to creating the right rights’ future.

    Human Rights are increasingly becoming mainstreamed. It appears to be (and this is part of the reason I decided to study it) the ‘language of the good’, for better or for worse. Human rights, particularly internationally, is the playing field of morality. This has its major dangers (see the war in Iraq) – as it is ultimately a battle of ideas, of who can shout the loudest.

    Yet overall I think this is positive. Indeed, there is something at the core of human rights which catches in a lie those trying to appropriate the language for pseudo-compassionate ends. When David Davis was discussing so called ‘negative rights’ at the event, he said that these were incredibly important rights and refused to call them minimalist. Noone wants to disagree that political and civil rights are important, but I feel to ignore (or place in a hierarchy) the development of economic, social and cultural rights displays a lack of understanding of how individuals are embedded within particular societies – and what is required for human flourishing. Anyone who see’s human rights as a project which addresses the dignity of all within any given society cannot stop at an arbitrary point in the human rights agenda. Human rights are ALL contingent on circumstances, not just socio-economic rights. That’s doesn’t mean they shouldn’t all be fought for.

    Still, it must be recognised that the mainstreaming of this discourse can also blunt its power and make it sit far too easily with existing unequal power structures – this is no more evident than through the paradoxical arrangements of international law. One would hope that those who employ the language of rights without meaning would be caught in a kind of spiral, where the logic of the language defeats them – but this is by no means certain. Enforcement certainly is nine-tenths of the law. Flimsy, unenforced laws (without the political culture to back it up) make a mockery of human rights and dilute the power of the discourse. The universal and non-discriminatory language of human rights has the resources to challenge this, but this will be an ongoing battle.

    There is no set human rights future. In fact, history has shown us to be wary of ‘compassionate’ political ideologies being drawn into grander nefarious projects. This is not something that is inherent to the idea itself (something David Davis would do well to realise), but to those people who seek to appropriate it to enforce or exacerbate existing inequalities.