MM 2001: Moral rights, global responsibilities

December 21, 2000

The more the fight for human rights gains in popularity, the more it loses any concrete content," writes novelist Milan Kundera in Immortality. "The world has become man's right and everything in it has become a right: the desire for love a right to love, the desire for rest a right to rest, the desire for friendship a right to friendship, the desire to exceed the speed limit, the right to exceed the speed limit."

As new human rights legislation is passed, a new international criminal court is established, new precedents are set for violators to be hunted down, prosecuted and even bombed, will the upholding of human rights become a selfless or a self-indulgent aspiration for the 21st century?

Human rights are at the front of the public mind in England, with the enactment of the Human Rights Act. As controversial early cases are heard over the next few years - criminals' rights to keep unproven gains from drug trafficking, children's rights not to wear school uniform - academic lawyers will be called on to predict and interpret judgments that will stand on different principles from anything else in English law, says Jenny Watson, director of the Human Rights Research Unit at King's College, London. "The Human Rights Act is values-based legislation. It is designed to achieve cultural change. It is fundamentally about how people treat each other, and that means a different approach to law in the courts, looking at the purpose of the act and how it was written rather than precedent."

The research unit will publish regular bulletins on how courts implement the act, as well as comparisons with human rights law in South Africa, Canada, New Zealand and elsewhere in Europe - a move that will substantially increase the quantity of academic publishing on human rights in the United Kingdom. For human rights is not a full discipline here - despite a flurry of expansion in universities including Sussex, Queen's, Belfast and the London School of Economics - but a junction where lawyers, political scientists and philosophers meet.

Much of their attention in the next 20 years will be focused on the question of whether human rights can be universally defined as a moral good, and if so defined, whether the international community is capable and justified in upholding them. Do we all have a right to life, to freedom of speech, to freedom from torture, fear and discrimination? Cultural relativists in the West, and many governments in the East, argue that these are simply western constructs, maybe Christian, maybe post-Christian, but in any case irrelevant to other cultures.

If these rights are universal, should they - and can they - be upheld universally? The agreement in Rome in 1998 to establish an international criminal court, the attempt to extradite General Pinochet from Britain to face charges in Spain, and Nato's claim to humanitarian intervention in Kosovo all appear to have devalued individual countries' claims to complete sovereignty and empowered the international community's authority to act against human rights violators.

But there are still arguments to come: the British government, for example, has not included powers to prosecute violators from countries other than Britain in its planned legislation supporting the international criminal court; there are big questions over whether the United Nations still holds the moral and pragmatic authority to act internationally in support of human rights.

And in any case, who will it act for and against? One of the biggest questions still to be answered in human rights is who are the perpetrators and who are the victims. Traditionally, the state has been the offender and individuals the victims. The English Human Rights Act implies that not just the government but also official bodies and perhaps in some cases private corporations can be prosecuted as offenders.

At the same time, in America at least, corporations have claimed that they have been denied "human rights" by state actions that have been detrimental to them. The question of what are human rights is in itself controversial, says Sir Nigel Rodley of Essex University's Human Rights Centre: "There is a question over whether armed opposition groups can be said to have violated human rights. For some people, domestic violence is a human rights issue. Historically, there has been a sense of human rights meaning the individual against the organised community. I think we over-dignify criminal behaviour if we call it a human rights violation, too."

Some political philosophers argue that the whole concept of human rights is flawed: that there is no such thing as a "right", only a culturally defined claim to one. But the moral argument likely to supersede this is the communitarian one: that rights exist, but so too do responsibilities, and that some claims to rights may destroy social bonds by over-valuing individualism and under-valuing the community.

And some academics argue that nowhere is this more true than internationally, where the countries that were in the forefront of liberal human rights in the 18th century - where citizens first claimed liberty and equality and other "self-evident" rights from the aristocracy - are the countries that now refuse to acknowledge the human rights of poor, debtor nations to be able to supply food and clean water to their citizens.

Alan Miller, visiting professor at Strathclyde and Glasgow's Centre for the Study of Human Right Law, argues: "The 18th-century Louis XIV's self-serving definition of rights as ' L'état c'est moi! ' reappeared at the World Conference on Food in Rome when the US representative proclaimed contempt for international human rights treaties by declaring that 'there is no right to food'.

"Increasing numbers of protesters and commentators are now stating that on a global basis there has been reached an impasse between property rights and human rights… that rather than human rights, what there is in the real world is, in fact, the trampling underfoot of even such fundamental rights as the right to life itself."

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