THE STATE WE’RE IN
DO THE R I GHT THING THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY
By Samuel Moyn (The Belknap Press 337pp £20.95)
LIKE NATIONS, POWERFUL ideologies need a noble past and have a way of inventing what history has not given them. In a perceptive aside, Samuel Moyn compares the history of the international human rights movement to the foundation myths of the Christian Church. It has its saints and martyrs, its formative battles, its eternal doctrines and its holy books, all supplying a crust of antiquity and a habit of reverence. Novelty sparkles, but no serious advocate of any universal ideology would like it to be thought that his ideas were a mere creature of fashion. Born yesterday? Dead tomorrow.
The main theme of The Last Utopia is that, in its most influential for m, the human r ights movement was indeed born yesterday – in the 1960s to be precise. Of course, Professor Moyn knows all about Tom Paine, the French Revolution’s Declaration of the Rights of Man and the United States’ Bill of Rights, which were c re a t i ons o f t he e i ghteenth-centur y European Enlightenment. But they hardly count. They were attempts to create liberal constitutions for nation-states. By comparison, says Moyn, the distinctive feature of modern human r ights theory is its claim to universal validity. It attributes rights to humans simply by virtue of their humanity, and not by virtue of their membership of any particular legal or national community.
This idea is of course very ancient. The original impetus came from Christianity. A theory of ‘natural’ rights was articulated by Thomas Aquinas. Drawing on this specifically Christian tradition, Grotius and Hobbes developed and secularised it in the seventeenth century. Their views about the content of human rights were not consistent and are very limited by comparison with those of their successors. But they did at least put forward a notion of rights which was universal and not sectional. The problem was that they wrote for the age of the nation-state, which has always claimed from its citizens an allegiance transcending the demands of mere humanity. The modern human rights movement derives its strength partly from the perceived failure of the nation-state in the second half of the twentieth century, and partly from the sudden collapse since the 1960s of competing universal ideologies such as Marxism and (at least in Europe) Christianity.
The history of the phrase tells us much about the origin of the thing. ‘Human rights’ entered the vocabulary of political discourse with the Anglo-American Declaration of the United Nations in 1942, which included among the
Allied war aims the defence of ‘life, liberty, independence and religious freedom’ and the preservation of ‘human rights and justice in their own lands as well as in other lands’. Even this Moyn regards as mere sloganeering. ‘Human rights’, he says, ‘entered history as a throwaway line, not a well-considered idea.’ This is borne out by the absence of any evidence of serious thought about what was entailed, as well as by the chequered history of human rights in the postwar world. In the 1950s and 1960s, the whole notion of human rights as an international set of values was hijacked by anti-colonialism, which erected national self-determination as the first and foremost human right, thus transforming what should have been a universal value into a new chapter in the history of the nation-state. Contrary to popular belief, the shocking internal history of the Third Reich did not in fact provoke a backlash of support for international human rights until at least a generation after the war. And in spite of the long shadow which the Cold War cast over international relations, the West woke up very late to the possibility of using human rights as a weapon against the Soviet Union. The catalyst was provided by Andrei Sakharov in Russia and the Charter 77 movement in Czechoslovakia. The whole-hearted adoption of a human rights agenda in the foreign relations of the United States did not come until the Carter administration. Among America’s allies, only David Owen in the United Kingdom responded with any enthusiasm. Moyn has written an interesting and thought-provoking book which will annoy all the right people. But it has two serious weaknesses. It is out of date and excessively Americo-centric. As a result it largely ignores important developments of the last fifteen years, with significant implications for his argument.
The invention since the 1980s of an international criminal law, reflected in the conventions on torture and genocide and in the creation of international tribunals to try human rights violations in Yugoslavia and Rwanda, are striking developments about which Moyn has nothing to say. Although there is a whole chapter on the colonisation of international law by human r ights, there is nothing about the growing consensus among states and international lawyers in favour of humanitarian intervention in the internal affairs of rogue states like Somalia or failed states like the former Yugoslavia. Yet, given the almost absolute guarantee of states’ territorial integrity under Article 51 of the United Nations Charter, this is a remarkable development.
If the advocates of international human rights have tended to applaud it, they have also had to face the fact that it has been the work of powerful and aggressive Western states with a wider agenda. That the United States resorted, in the aftermath of 9/11, to kidnapping and torture on an international scale is a sombre warning that the nationstate is the natural adversary of international human rights as well as its natural instrument. A general sense of insecu-
LITERARY REVIEW Dec 2010 / Jan 2011
6 THE STATE WE’RE IN
rity in the face of terrorism among some of the most liberal populations of the world has allowed states to resort with relative impunity to methods which would have been unthinkable only a decade ago. There are no one-way streets in history. The evidence, although far from consistent, suggests that however deeply embedded human rights have become in the outlook of lawyers and in the pieties of public life, the electorates of the West regard them as an optional extra, to be discarded as soon as they start interfering with more serious concerns such as immigration, crime and national security. Moyn’s book i s full of passing references to the European Human Rights Convention. But his strong regional bias towards the United States and the preoccupations of US foreign policy has prevented him from taking much interest in it. This is a pity, because the Convention is in many ways the most significant embodiment of the modern ideology of human rights. Alone of the many national and international declarations, it provides for its enforcement by an international court with a right to hear individual petitions and to make decisions which the contracting states bind themselves to put into effect as part of their national law. Short of giving these decisions direct legal effect, there could not be a more striking statement of the primacy of human rights over the autonomy of the state. Moreover, although most of the rights recognised by the Convention are qualified by exceptions where these are ‘necessary in a democratic society’ (or some equivalent phrase), the flexibility which these exceptions bring is achieved by a massive transfer of discretionary power from democratic legislatures to the judiciary at both national and international levels. This has been particularly noticeable in litigious societies such as the United Kingdom.
The European experience certainly bears out Moyn’s view that universal human rights are a recent phenomenon. The Strasbourg court, which opened for business in 1959, had decided only seventeen cases by the mid-1970s. But by 1998 it had delivered 837 judgments, and by the end of 2005 nearly 6,000. The number of states recognising its jurisdiction increased from ten to forty-seven in the same period. But what the European experience also suggests is that this explosive development may be vulnerable to its own success. The court’s impressive volume of business is largely due to the fact that it has treated the Convention not just as a safeguard against despotism but as a template for most aspects of human life. These include many issues which are governed by no compelling moral considerations one way or the other, and which had previously been regarded as within the domain of administrative discretion or as matters of convention rather than law.
However universally rights may be recognised, they are necessarily claims against the claimant’s own community, and depend on a measure of assent by that community. Extremes apart, communities may and do legitimately differ on what rights should be recognised. Their varying political and constitutional arrangements also mean that the same rights are not equally necessary or desirable in all places. A principled objection to extreme exercises of state power, such as military government, torture, or imprisonment without trial, is probably common to all of them. But a common legal standard breaks down when it is sought to be applied in detail to every aspect of collective activity or political and administrative decision-making. The consensus necessary to support it at this level simply does not exist.
Short of a pan-European political and legal union, the ultimate outcome is likely to be the rejection of the current Procrustean model in favour of something that allows a far wider margin of power to participating states, and a correspondingly diminished role for judges as opposed to national legislatures. It will take a shock to achieve it, but the shock will surely come. The basic problem, as Samuel Moyn recognises, is that international human rights are too new to have embedded themselves in our collective values, except perhaps at the level of the political and legal elites. The state commands loyalties that are far more profound. As recent American experience shows, even two centuries of libertarian tradition may not be enough to prevent a reassertion of national interests and geographical separatism, accompanied by a return to discretionary and authoritarian habits of government. Human r ights are more fragile than we realise. A more restrained and less international approach to them in Europe may well make them stronger and more durable. ❑
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