The UDHR at 70: What Next for Human Rights?

How serious are current threats to the post-war international order of which the protection of human rights is such a central part?

Three potential challenges in particular come immediately to mind.

First there is the outright rejection of the very idea, with states organizing themselves formally around systems of rule in which individuals are allowed to be explicit casualties of passing state interests. Of course not even the worst states put it quite like this, and with the passing of the era of the Cold War no substantial ideology sets its face against human rights in quite this explicit way: indeed not even the Soviet Union did so at its height, preferring a different version of human rights (economic and social rights) to having none at all.

The second challenge is more akin to what the Soviets were doing when they resisted Helsinki with pointed references to the way they looked after the real needs of their citizens: more social protection than Solzhenitsyn. We believe in rights for sure: but here is what we mean by the term and (particularly important) here is how we go about protecting them. It is an exaggeration but only a slight one to say that today no self-respecting authoritarian state is without its media (state-controlled), its elections (fixed), its human rights commissions (tame nominees) and its ‘special’ courts (generalized charges; government-appointed advocates; secret justice). The loudly-proclaimed spectre of terrorism is the means by which such arrangements can be made to secure public and international approval, something on which the United Nations itself has led the way with its (Institutionally self-defensive) turn to a panoply of Security Council anti-terrorism resolutions in the aftermath of the attacks of 11 September 2001. In many ways the field of international human rights over the past two decades has been about how to balance liberty and security in light of the changed circumstances wrought by those traumatic events. On the whole human rights has managed to claw back some ground from the anti-terrorism people, aided in particular by strong stands on due process and the rule of law that have been made by lawyers’ associations worldwide and the regional judicial bodies within Europe. Human rights have come to live with the exigencies of the permanent security crisis, not liking what it entails but coping nonetheless.

The third challenge is newer, flowing out of how the world has changed since the collapse of the old order in 1989 and the consequent return of national and religious tropes thought to have been banished for ever in the postwar world of rationalism and (latterly) of global and regional partnerships. It is early days but this may be the most serious crisis yet since it is a growth upon the same system from which human rights is itself derived and all the more subversive for that: representative democracy. There are two versions, each dangerous. First what we might call the Orbán thesis, after the combative and long-serving Prime Minister of Hungary – here is an example of his characteristic engagement with the issue. Human rights are not denied but rather framed as an aspect of a particular (usually Judeo-Christian) culture which is in a struggle for survival with a dangerous Other (usually Muslim, presented either as terrorist or asylum-seeker). The Israelis were among the first of the blocks with this clever sleight-of-hand: human rights are not composed of legally enforceable rules but are rather what we have and those barbarians don’t and how we can win. It was given additional impetus by the ‘battle of civilisations’ which provided cover for the aggressive US militarism that followed the 11 September attacks, and it has found a recent natural home in populism: voters love to be told they are special and the easiest way to do this is by finding an enemy who can never belong.

The second version of our third challenge is similarly rooted in populism but lacks the subtlety of the Orbán manoeuvre. Epitomised in the presidency of Donald Trump, which was in turn anticipated by President Duterte in the Phillipines and seems to be about to be emulated by President Bolsonaro in Brazil, this perspective thrives on a joyous and unselfconscious refutation of human rights constructed off the back of electoral success. People with disabilities are there to be mocked, women to be grabbed at, suspected criminals to be shot, political opponents to be locked up, and so on. The UN and its ridiculous declarations of rights is there to be ignored and hopefully destroyed. It is hard to believe that such an attitude can survive electoral examination, at least in the United States, so it must surely be a passing fad. But if not, if it becomes institutionalized in the global power that seventy years ago constructed the world order that is presently under attack, then human rights do indeed face a bleak future if they survive at all.

So where then do human rights stand, as the UDHR enters its 71st year? We can be sure that further difficulties lie ahead, driven both by the ongoing migration of peoples to places that both need and don’t want them and by the pressure on human rights that is likely to be ever-increasingly imposed by global climate change. Without a powerful global patron it does seem hard to imagine human rights existing in its intended robust shape on the world stage; much more likely is the triumph of the second challenge I identified earlier, the kind of ‘neo-democratic’ system about which I wrote in a recent article. Human-rights-oriented nation states may be able to do good within their borders but with the return of a global social democratic movement seeming a far off dream, there seems little chance of even the best of them being able to do more.

The answer – if there is one – lies in regional cooperation, not only Europe as I argued recently but the Americas and Africa as well, possible even the Asian states as well. The success of human rights protection is indelibly linked to the operation of authentic representative government beyond merely the occasional country, and at this bleak moment for human rights regional may be the best hope we have.

A Remainer planning to be a Returner

 

 Why we must all be with Rees-Mogg

By CONOR GEARTY

Shortly after the 2016 referendum a friend of mind, an experienced diplomat, said of Brexit that it could best be understood as a type of cult, played out on a vast – and therefore catastrophic – national stage. We both knew of the likely range of disastrous consequences that would flow from the “decision” that the “people” had supposedly then just taken.

Since our conversation the cult aspect of Brexit has become even more evident: the setting of the day when the New Jerusalem triumphantly arises from the ashes of our European past (29 March 2019, at exactly 11pm); the blind assertion of faith in the future in the face of all the evidence that Brexit will be chaotic and debilitating; and – more recently – a growing sense on the part of the leading disciples of Brexit that the New Kingdom may take a while to emerge after all: indeed, over a period of fifty years on the estimation of Jacob Rees-Mogg in a recent exchange on Channel Four News. My friend went on to explain why so many cult followers choose death over acknowledgement of their error: they prefer to kill themselves rather than accept the deep nature of their error.  This is what we face on 29 March next year: a national suicide as an escape from the admission of terrible error – death rather than repentance and reversal.

What can those of us who are not cult members, who watch aghast on the sidelines, do? Must we assist the fatal process, seek to stop it, or just make our selfish plans to survive the liquidation as best we can, diverting our eyes from the mayhem around us, holding fast to our wallets and damn the rest? Many are working to secure a second referendum; some are add seeking to steel the will of MPs to vote down the whole thing when it gets before them in some shape or other in the Autumn; and others hope a new election will be called, and a Remain government is returned to power and so saves the day. All three options are superficially attractive and some of them – or a combination of all three – might well work. So too might the de facto surrender on all points which the Government may well feel compelled to make as the Brexit cliff draws closer – leaving the UK with all the constraints of Club membership (including the payment annual dues) but no say in its organisation or governance: a suicide of gloomy servitude.

But the difficulty with all of these options, if any of them were to succeed, is with the longer term: we have not the slightest guarantee that the Brexiteers will commit political suicide if they cannot take the country with them. Rather the reverse. They will live on, saved from collective annihilation, to preach treason and betrayal at every turn and before every audience. If Brexit were indeed to be formally reversed, UKIP would revive, and win a multitude of seats in the European parliament in the 2019 election (from which, as things stand, they will be mercifully excluded). At home the fights with the EU over the reversal of Brexit would suddenly become the new casus belli. The servitude option would produce exactly the same effect. Endless battles would ensue to take back control properly by throwing off the Brussels yoke, and damn the international agreements that would seek to stop us.

 

Nothing would be settled because none of the core problems that have given rise to this Brexit madness would have been addressed. What are these? First the sense of entitlement that pervades English culture, a sense of exceptionalism that makes even other faded post-colonial powers seem modest. Second, the ongoing absence of any kind of loyalty whatsoever to the EU, a relationship perpetually presented in transactional terms but with the bargains that come our way being always hidden while the costs get shouted from the rooftops. Third, the constitutional illiteracy of a society that boasts of having no constitution, where power is exercised informally in accordance with unwritten conventions and in which no serious reflection on the rule of law and respect for human rights has ever occurred. Brexit reversal or EU servitude would both exacerbate, not inoculate us against, these diseases of the collective mind.

So why must we be with Jacob Rees-Mogg? Every conceivable Brexit outcome overseen by Mrs Theresa May would be condemned from the sidelines by the chief Brexit cultists, who would claim they could have done better, that the “Remainers” have had their clever way (whether reversal or servitude) or that the chaos of a no-deal Brexit could have been avoided in some clever unspoken way had we been “tougher” with Brussels. The chief believers need to be in charge, leading the country over the cliff. A good start has been made with the ever perky Dominic Raab now getting his weekly tutorial in reality from Mr Barnier. But the whole ship needs to be sailed into disaster by a captain of unimpeachable cultist authority. And that is Rees-Mogg not Boris Johnston or Michael Gove, opportunists both. If it is to be surrender, servitude or chaos it must be unequivocally on the Brexiteers’ watch.

What then? Of course I hope for the best, with Rees-Mogg leading a dramatic reversal of Brexit on the eve of departure, with no domestic scapegoat to hide behind. But let’s assume the worst – that Rees-Mogg takes the United Kingdom into oblivion. That will be the end of him and his crowd as long as we still have elections – “Wait 50 years!” is not a resonant election slogan. Over time Northern Ireland will surely join de facto (and eventually de iure) with the Republic of Ireland. Scotland may be forced by chaos into independence and then a formal (fast-tracked?) application to join the EU will surely follow, and be successful.  Wales will agitate for the same. And England? I may be an emotional Remainer but strategically I am a returner. Sooner or later, its imperial delusions smashed, its constitution exposed as broken, its young people will have their revenge. A European Troika from (let’s guess) Latvia, Ireland and Greece will eventually be invited in to assess the country’s suitability for rejoining the EU. By then the Brexiteers will, on the whole, be dead or shouting from their political cul-de-sac. Rees-Mogg himself will have returned to the eighteenth century.

Of course the pain will be terrible. But it will be whatever course is now adopted – the catastrophe was the Referendum. Rees-Mogg may be right that it will take fifty years to get over it – but not in the way he believes.

Brexit and the Irish Border

In a recent Irish Times piece Chris Bickerton from Cambridge University and my colleague at LSE law Peter Ramsay argue that Ireland and the UK need to face ‘up to their sovereign responsibilities’ and ‘drop the [Northern Irish] backstop and work together to introduce a minimal land border, and to achieve a future UK-EU that preserves the close links between the two countries.’  The argument might have been stronger had Brexit been the result of a process of consultation both within the UK and with its friends beyond its borders.  But of course it was not. Foisted on Ireland in the name of a country determined ‘to take back control’ why should Ireland now forgo control of its own future to assist the UK in the horrific quandary its dash for ‘freedom’ has made for itself?

Taking back control works both ways. The backstop is not the result of some kind of elite manipulation by nefarious EU and Irish forces.  The British agreed it before Christmas last year because those in charge of their withdrawal discussions with the EU (negotiations is too grand a word) know how weak their position is, whatever purists – political and academic – might be saying about sovereignty or anything else on the sidelines of reality.  The EU timetable for the talks, the money owed and so on were all conceded without a fight for the same reason. And it will get worse: the so-called Chequers agreement (a government agreeing with itself!) has already fallen apart.

Ireland’s sovereignty is immeasurably strengthened by its ties with Europe. It would be catastrophically weakened by returning to be the poodle of the British. Ramsay and Bickerton acknowledge the possibility of deep economic damage in Ireland and (though they are sceptical) a renewal of political violence in a way that suggests that these might be the reasons Ireland should now cave in.   True there are some nice noises in the piece about the authors’ desire for a United Ireland, reminding me of those English left-wingers from the 1980s who were always disappointed to find I did not support the IRA. Imperialism has never been the exclusive preserve of the Right.

Asking the Advice of Chris Heaton-Harris MP

Dear Mr Heaton-Harris

I have written to you before seeking help from you with regard to my forthcoming lecture on Brexit and Human Rights – but I have not received a reply. The thing is that the lecture is very soon – at LSE next week and I still haven’t got much clue about the benefits of Brexit! Now I know you are dead keen on scrutinising what we academics say about Brexit for bias and so on which is why I really need your help. I’ll do my best to find good things about Brexit – I have found one possible and one potentially.  But I need more.

You are doing a book I know and are a kind of scholar I am guessing.  Let me tell you about a well-known feature of free speech.  It is called the ‘chill factor’ – someone in a position of authority (like you, a member of the government say) writes to the bosses of a bunch of people (vice-chancellors for example) asking for details about what those people are doing (say giving lectures) when everyone knows (but no one says) what is really going on is deliberately raising a doubt in the minds of these junior people whether they should do or say or write the thing of which they know the powerful person disapproves (that Brexit is a stupid self-destructive act of national suicide for example) in case they get moved against by the bosses. McCarthyism started this way – people thought the junior senator from Wisconsin was a second rate nobody but he went on to wreck people’s lives. Check out Campus Watch in the US for another example.  I doubt you could possibly have intended this kind of thing, but it risks being an effect.  I genuinely want your input so that if anyone moves against me for bias I can say you were invited to engage – better still come to the lecture!  I’ll give you an immediate right of reply.

Professor Gearty

 

Vietnam – and Brexit: Avoiding disaster

I am nearly finished watching Ken Burns’s epic documentary series  on Vietnam.  David Thomson, writing in the London Review of Books , is surely right to talk of it in terms of being (one of?) the finest documentaries ever made.

So what is the connection with Brexit?  Am I being an obsessive?

Well of course the casualties from Vietnam were direct and the horror immediate. The deaths and destroyed lives from Brexit will take longer and envelop people with no drama. But that’s not the point I want to make now.

A late episode in the series details the impact of the leaking of the Pentagon Papers. I’d forgotten quite what they signified. Commissioned by an at-this point departed Secretary of State (Robert McNamara), they were designed to get into writing the lessons of the disaster that was Vietnam. The Nixon administration tried hard to stop the New York Times running them, even fighting (and losing) a case all the way to the Supreme Court. They showed successive administrations knew that Vietnam was a disaster and consistently lied to the public while things went from bad to worse.

Remind you of anything? Exactly: those 58 studies of the impact of Brexit that David Davis refuses to publish.  These are Brexit’s Pentagon Papers. They must come out.

Asking the advice of Chris Heaton-Harris MP

Dear Chris,

I hope you don’t mind my writing. I would appreciate your advice please. I am giving a public lecture on Brexit and human rights at LSE in mid November – gosh, sorry no power point to send you! – and obviously I want to include all the good things about Brexit’s impact on human rights. Trouble is I can’t think of any! Can you help me achieve government-approved balance? Now maybe it is simply that Brexit permits the destruction of human rights and that is thought by you and others to be a good thing. If so let me know and I’ll include it! But if there are things that work for human rights do let me know them. Need to avoid the thought police, eh?!

Very sincerely yours

Professor Conor Gearty FBA, MRIA, Bencher Middle Temple, Irish and European citizen.

The Society of Legal Scholars in Dublin

Well it was a special thing to give the After-Dinner talk at the Society of Legal Scholars  Conference in Dublin last night.  Here is the hall being set up and full as it was last night it is a glorious space. The conference itself is being held at UCD where I was a student many years ago and this is the first occasion the Society has ever held its annual event outside the UK. All very moving for me.

Inevitably I talked about Brexit and argued that in Ireland there is a special obligation to assist the UK at this hour of terrible need. (As those of you reading this who know my work will know I am an ‘extreme remainer’!)  Ireland’s common law traditions and its long close association with Britain (or do I mean quasi-colonial domination?) will post Brexit make it a powerful bridgehead between a declining Britain outside Europe and the rest of the EU.  To be effective, it is vital that somehow or other Irish-British relations survive the horrible years of rupture that inevitably lie ahead, so that when common sense returns the Irish are ready to assist.

Is this unduly provocative? Or patronising?  I don’t think so. In the speech I identified six arguments for BREXIT, and found none of them persuasive.  The first three are more or less the same: Brexit proponents frequently explain themselves by attacking the EU (either (i) ‘it is corrupt, venal, hopeless’ or (ii) ‘it is about to fall apart’) or (iii) attacking the people in favour of remain (‘liberal elites’; ‘experts’ etc) as out-of-touch with the people.  None of these positions is an argument. They are just ways of changing the subject since all might be true but the question of whether the EU is so important that the costs – if they really exist – need to be accepted is as a result of this shift invariably dodged. The fourth (‘taking back control’) has been laid to rest by the Government itself whose key white paper has admitted that parliamentary sovereignty was in truth never subverted by the EU but that ‘it just felt like that’. The fifth – the people have spoken – is another procedural trick to avoid any discussion of substance; deployed by the other side it would render all argument after the 1975 referendum illegitimate, an idea that would have been rightly rejected by all those pushing for the more recent referendum.  Democracy is by definition about fluid decision-making. The sixth argument is the strongest – we need to disrupt everything to make progress. Brexit throws all the cards on the table, the game of Britain begins afresh – all will be fine even if there are short term hiccups.  Maybe.  But how things will be fine and what fine will mean are never defined.  This is some risk to take with a people no longer able to rely on colonial territories for the easy accumulation of wealth.

Sinn Fein means ‘Ourselves Alone or ‘We Ourselves’ in English.  How will the UK enjoy being the new Sinn Feiners?  Not very much I confidently predict.  That’s when the old Sinn Feiners (of all contemporary political persuasions), now confidently cosmopolitan, will be needed to help rescue a country drifting aimlessly ever further out into the north sea.