Liberty and Security (Themes for the 21st Century)

Liberty and Security by Conor Gearty. When I was a student at Oxford, one of my tutors suggested that Thomas Hobbes might perhaps be considered the most intelligent person to have studied at that University. It struck me as a fascinating claim. Hobbes seemed to me then and still seems to me now to have identified one of the central problems that we face, a difficulty which can be set out in three inter-linked statements: The Hobbesian challenge is to devise effective means of preventing these rival interests and views from erupting into violent conflict.

Another of my Undergraduate essays enthused over his seventeenth-century contemporaries, the egalitarian Levellers. In neo-democracy, inequality and unfairness are defended, with liberty and security only being made available to the few. Egalitarian language, the author asserts, is being deployed to defend what are really elitist readings of liberty and security.

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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.

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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.

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.

The CESCR makes explicit the distinction between acceptance of legally binding international norms and their implementation.

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Each State Party to the present Covenant undertakes to take steps , individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Because of the broad language employed in the Covenant and the progressive nature of implementation, some commentators particularly in the USA, which has signed but not ratified the ESC Covenant question whether these are rights at all, but this is clearly a minority position. Variation in interpretation and implementation is evident for many rights, perhaps none more so than freedom of expression. As articulated in Article International human rights bodies recognize flexibility in many ways. Of course, such deference to the state can be dangerous, and it is often difficult to discern the criteria upon which states are determined to have exceeded or acted within their margin of appreciation.

Nevertheless, some discretion in interpretation and implementation of human rights norms is essential, unless one believes that every right must mean exactly the same thing in every country at all times. Country-specific deference has been shown by the European Court of Human Rights in permitting Turkey to limit the wearing of headscarves and to retain an electoral system that may result in effectively marginalizing regional parties; permitting France to ban the public wearing of the niqab or burka through a law outlawing face coverings in most circumstances ; and allowing Italy to require that crucifixes be hung on the walls of public school classrooms.

This is just common sense. Even in a relatively homogeneous region such as Europe, for example, the European Court of Human Rights has consistently been unable to identify a common European conception of morality. The issue is not that it is wrong to argue that societies and cultures should change, and evolving conditions make resisting any change whatsoever both impossible and undesirable. In particular, outsiders should be able to support domestic efforts to foster social change that is consistent with modern values of tolerance and non-discrimination.

Even legitimate complaints about rights violations may be lost if the context is muddied. For example, while members of the punk protest group Pussy Riot who were sentenced to years of imprisonment for interrupting a religious service to protest Russian government policies were certainly victims, they were hardly human rights heroes or defenders. Performance art, even if deliberately aimed at political or cultural sensitivities, is protected under the guarantee of freedom of expression, but interfering with the rights of others the Russian Orthodox clergy and parishioners, in this case under the guise of free expression can be legitimately restricted.

The impact of international human rights law risks being weakened if human rights are highlighted primarily in the context of popular causes and celebrity. Finally, shorthand references to rights also may ignore the content of the obligations that states have actually assumed.

No state has refused to treat Saudi Arabia as a party to the treaty, despite the arguably illegal Saudi reservation.

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Cultural overreaching also misunderstands—perhaps deliberately—the difference between legal norms and moral, political or social norms. The USA cannot claim the right to torture suspected terrorists, and China cannot refuse to provide full educational opportunities for girls—not simply because outsiders think that torture is bad and equal education is good, but because the USA and China formally bound themselves to respect and implement these rights.

Law is not the only or even the most important source of societal norms, but it should not be conflated or confused with other norms that may stem primarily from the views of a particular society, religion or interest group. Finally, a primarily legalistic, adversarial approach to rights whose content is either ill-defined or deliberately stated in broad terms to accommodate regional and national priorities is unlikely to be received favourably even by states willing to make a commitment to international norms. Indeed, concepts such as democracy and rule of law may have quite different meanings in different contexts.

Calls for restraint and moderation rarely inspire the emotional commitment that often flows from appeals to absolute truth and fundamentalist conviction. There is a fine line between admirable dedication to a cause and inflexible zealotry, however, whether the cause is human rights or the promotion of moral or religious purity. This essay is an appeal for radical moderation, which celebrates and promotes human rights norms without distorting or deifying them. It rejects starry-eyed human rights lawyers who aspire to be social reformers, as well as narrow libertarians and positivists who believe that both states and law are nuisances, to be tolerated only so long as they do not interfere with individual greed and intolerance.

This moderately radical approach also rejects claims by many domestic social activists that international human rights law provides a dispositive answer to addressing internal disparities in political and economic power that would, in many cases, be better resolved through political debate and activism within the society. This limited view of human rights is consistent with a belief that, first, international law does matter and, secondly, it is not a bludgeon to be used primarily by the powerful against the weak. This is an avowedly legalistic approach, and its corollary is that maintaining the distinction between law and morality or law and politics is important.

Recognizing that these concepts are created and enforced differently does not diminish any of them; if anything, it should reinforce the fact that social progress can only be achieved by appealing to law, politics and morality. People demand rights that are most immediately necessary or that are in some manner prerequisites to enjoying additional rights. Protecting women from endemic violence and minorities from discrimination are de facto requirements if they are to enjoy other rights.

A more realistic focus for the foreseeable future on the most fundamental and achievable human rights is more likely to lead to progress than is a diffuse approach that plays on momentary outrage or reflects a social agenda that dovetails with the preferences of Western funders and politicians. The notion of fundamental or core rights is both old and controversial, and I acknowledge the weakness of the reference.

However, this is a more realistic approach for advocates and practitioners than is simply intoning the mantra that all rights are equal, indivisible, etc. Human rights triage may even have an advantage over medical triage, since effective protection of such rights such as free expression, the prohibition against torture, freedom of trade unions, non-discrimination and the obligation of government to foster an improving standard of living is likely to have a snowball effect that will make it easier in the future to guarantee all rights.

This approach is not sexy, and it risks losing some of the emotional support for human rights that stems from highlighting war casualties or publicity-friendly global issues such as the plight of children. It may unfortunately be interpreted to support an overly conservative approach that discourages the formulation of new rights that are required to respond to social, political and technological change. It does not directly address many of the major issues with which the global community and individual societies are faced on a daily basis.

Whether unfortunate or not, the fact is that international human rights law per se has had very little impact on the conduct of war, the conclusion of peace agreements, the reconstruction of post-conflict societies, the redistribution of wealth, economic theory or restructuring power relationships within families.

The solutions to most conflicts or malfunctioning societies are too complex to be aided in a significant way by simplistic appeals to human rights law.

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At the margins, human rights can help design a more responsive and equitable system of government; they may promote transparency and accountability and undermine an atmosphere of privilege and impunity; they may mandate wider participation for more people and diminish at least de jure discrimination. But human rights norms are targeted at regulating the relationship between individuals and their governments, not offering grand plans for the re construction of society itself.

Despite the obvious difficulties in dealing with the frontiers of human rights law or setting priorities, one should not ignore the consensus that does exist in all regions of the world over the core content and legitimacy of most human rights. Fair trials, freedom from torture, prohibitions against arbitrary killings and systematic racial discrimination, obligations on the state to promote basic socio-economic rights—all of these norms are widely accepted in principle, even if practice leaves much to be desired.

They are accepted by governments, at least formally, and by most activist members of civil society, although both government and civil society have goals that transcend the narrow bounds of human rights. However, the debate over the precise scope of human rights law in some areas should not obscure our agreement on its content in many other areas. At the same time, we cannot assume that the battle for even a reasonably conservative definition of human rights has been won, any more than history ended in the late twentieth century. For example, many Asian and African countries are seeking to reduce the responsiveness of the new UN HRC, not expand its effectiveness.

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International Law, Security and Ethics. Terrorism and Human Rights. The Ethics of Foreign Policy. Examining Critical Perspectives on Human Rights. The Iraq War and Democratic Politics. Yearbook of International Humanitarian Law Detention in the 'War on Terror'. The Rise of Anti-Americanism.

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The Wars on Terrorism and Iraq. The 'Civil Society' Problematique. Human Rights in the Prevention and Punishment of Terrorism. War, Terrorism, and Democracy.