This post is a summary of the keynote lecture given by Professor Gearty during the workshop ‘The Universal Declaration at 70: What Next for Human Rights?’ on 26th November 2018. The event was co-organised by the Groningen Journal of International Law and the University of Groningen’s Centre for Religion, Conflict and Globalisation.
Professor Conor Gearty
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 how the Soviets resisted Helsinki with pointed references to the way they looked after their citizens’ real needs: 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 balancing 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 1989 collapse of the old order and the consequent return of national and religious tropes thought to have been banished forever in the postwar world of rationalism and (latterly) global and regional partnerships. This may be the most serious crisis yet since it grows 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 presented as 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 Philippines and seemingly 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 grabbed at, suspected criminals shot, political opponents locked up, and so on. The UN and its ridiculous declarations of rights is there to be ignored and hopefully destroyed. While is hard to believe that such an attitude can survive electoral examination, 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 Universal Declaration of Human Rights 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.
Conor Gearty is Professor of Human Rights Law at LSE and a Barrister at Matrix Chambers from which he continues to practice. He is a Fellow of the British Academy and a Member of the Royal Irish Academy, and a Bencher at Middle Temple and the King’s Inn in Dublin. Gearty has honorary degrees from the US, the UK and Ireland and has published widely in the fields of human rights, civil liberties and terrorism.