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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LITERARY REVIEW Dec 2010 / Jan 2011