The poverty of human rights?

Don Flynn reports on the waning of the hopes for a strong new human rights alliance between government and civil society.

he rights agenda in the UK at the beginning of 2003 does not appear to be in such a great state. Whether presented as civil, social, economic, democratic, or, the more modern and contemporary form of human rights, set-backs abound across the board. The government has the abolition of trial by jury in its sights as well as measures to further constrain the independence and discretion of the judiciary. Trade unions and trade unionists fare badly in the face of increasing measures of deregulation.

The reform of governmental institutions – from the electoral system through to the House of Lords – remains stalled. The state takes on increasing powers and develops new mechanisms of surveillance and control over individuals and civil society with the monitoring of personal communications – particularly e-mails – and the proposed new citizen’s ‘entitlement’ card. And asylum seekers, formerly guaranteed the right of support at least at minimal subsistence levels by the legal effect of Article 3 of the European Convention on Human Rights, will see this scrapped as the year goes on.

And yet the promise of greater emphasis on the human rights of all individuals resident in Britain was one of the key promises of the Labour government after its election in 1997. The core of Blair’s promise of a style of politics which was to be both radical and centrist at the same time, the agenda promised by the 1998 Human Rights Act appears to have collapsed into empty rhetoric.

The left did not anticipate this catastrophic collapse in the main plank of New Labour’s reform programme. Whether avidly in support of the idea, or agnostic, or even opposed to the abstractions and mystifications of the concept, the presumption had been that the human rights revolution would continue in some form and the rights of individuals would be increasingly strengthened against the arbitrary power of the state. What had not been foreseen was the implicit renunciation of huge swathes of the human rights agenda in favour of a return to the untrammelled authority of the national state. But that is where we are today; and it is important to know how we got here.

It might be possible to argue that the 180-degree reversal of government commitments arose from a weak commitment to the human rights agenda in the first place. This seems implausible. The new Labour leadership belongs to a milieu that has been immersed in discussion and advocacy of the virtues of human rights for much of the last two decades. Blair’s wife is a dominant light as a QC in the leading human rights legal chambers in England and Wales. The architect of the Human Rights Act, Jack Straw, is one of a dozen lawyers in the government who are undoubtedly committed to a strong human rights dimension in the legal system.

There seems little point in casting aspersions on the government’s commitment to human rights when seeking an explanation for the recent turn in direction towards decisively authoritarian policies. On the contrary, it seems that the place of human rights in the government’s agenda is similar to that of the withering away of the state in the programme of Lenin’s Bolshevik party. In both cases, the road to the good society, of necessity, seems to lead through the valley of intolerance and repression.

The language and practice of human rights, quite distinctively from earlier libertarian movements associated with the American and French revolutions and the Industrial Revolution, are not rooted in mass social movements mobilised around grievances against the exercise of arbitrary power by the local national state. For the American and French declarations of the Rights of Man to triumph, monarchical power had to be overthrown. For the civil libertarian movements of later years to play their role in the progressive reformation of society in the industrialised nations, the power of domestic ruling elites had to be challenged and pushed back. In contradistinction, the Human Rights movement, which has its genesis in the post-war polity of the cold war, the language of human rights is quintessentially the language of the state, speaking on its own behalf, in opposition to the methods of governance of other states.

Mass movements

At the time of its inception, no popular mass social movement was associated with the global assertion of ‘human rights’. The most important movements for liberation in the post war years – the colonial liberation movements (including the anti-apartheid struggle), the drive for civil rights and equality on the part of American blacks in the civil rights movement, and the movement for women’s liberation across the world – though occasionally borrowing the rhetoric of human rights, could not function in any natural way as partners of the leading proponents of human rights, because their sectional politics placed them in an ambiguous position in relation to the key cold war issues – i.e. the pro-free market Atlantic alliance versus the Soviet menace.

But of course, human rights were more than a political stance taken against opponents in the global struggle for power. When the leaders of the West asserted that ‘they hate us because they hate our free way of life’ they were actually referring to something that existed as a reality in their portions of the world, as opposed to that governed by their opponents. The operation of free markets is largely contingent on the freedom of citizens to enter into agreements and contracts with each other in the civil and economic realms of society in pursuit of their perceptions of self-interest. The sheer volume and range of the agreements which might concern such individual citizens must of necessity stretch the system well beyond the range of what can be overseen and directed by the organs of the state with any degree of efficiency. For the sake of its own working, capitalism is obliged to assume that its citizens are quite capable of exercising their autonomy and capacity for self-determination in a rational manner without the need for the arbitration or direction of the state over each and every detail.

The legal systems of the industrial nations conceded these issues during the course of the 19th century as civil society in liberal capitalism took on its distinct forms. Whilst scarcely reflected on during these stages as having anything particularly human about their fundamental principles, when gathered up and pitched against the great Soviet rival, the programmatic form of liberal capitalist liberties was suggested, and eventually expressed in such international conventions as the Universal Declaration of Human Rights, the European Convention on Human Rights, and, in the final stages of the Cold War conflict, the Helsinki Accords.

In all these instances the dominant form of politics was an appeal, within the terms of the narrow self-interest of the states themselves, to human rights as a method for maintaining the social order of liberal capitalism. As the Universal Declaration put the matter in its preamble, “[…] it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law […]”. In the language of the revolutionary American Declaration of Independence, the “self-evident truths” that, “all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness” was held to justify rebellion against autocratic power.

A mass politics of human rights?

Of course, it is possible that the politics of human rights, though commencing on the terrain of the defence and maintenance of capitalist interests, might under certain conditions, be subverted by a more radical, democratic political movement. There have been enough efforts to do this in recent years.

A model was provided in the late 1970s with the formation of ‘Helsinki Groups’ across Europe which operated with the intention of ensuring that national governments were held to the commitments offered up in the Helsinki Accords of 1975.

The most effective work of these civil society organisations took place in the countries of central and Eastern Europe and in some countries they contributed a powerful impetus to the ‘velvet’ revolutions which eventually overthrew the region’s communist regimes. They continue to function in a number of countries, and play an important role in monitoring civil liberties and democratic rights.

But the situation in Western Europe has to be contrasted with the post-communist regimes, where anxiety about the possibility of a reversion to authoritarian forms of government remains high amongst wide sections of the population. In mature capitalist states, the national authorities have developed an abundance of mechanisms which extend outwards into civil society, which provide the institutions of the state with greater opportunities for arguing that the defence of human rights is a role properly and naturally assumed by the exercise of traditional authority.

The centre-left maintains the hope that developments arising from the Human Rights Act will promote a new ‘culture of human rights’, which extends outwards to civil society and has the prospect of flourishing in a constructive relationship with the government.

Arguments of this sort have been most thoroughly developed by the Institute for Public Policy Research, and others supporting the establishing of a ‘Human Rights Commission’-type quango.But the arguments against the construction of a progressive alliance between government and civil society in support of human rights are mounting up. The evidence suggests that civil liberties face their biggest threat in a generation from a growing volume of government measures which are designed to increase the control powers of the state . It might just be that the left will have to face up to the fact that the entrenchment of five decades of the human rights discourse within a liberal capitalist framework will become redundant. In doing so, we may find it fruitful to look further back to the traditions of anti-state resistance, developed ironically in, amongst other places, the earliest phase of the American revolution, as well as a civil rights tradition which sought, not a partnership with the powers-that-be, but their outright defeat.