Evolving Human Rights

Many see the human rights defined in the Declaration of Human Rights, the two UN human rights covenants and the European Convention of Human Rights as absolute. They may accept that the relatively broad norms are filled more expansively as time passes, but they reject, correctly, that human rights are culturally or geographically contingent. The individual heads of right are sacrosanct.

Now, it is pragmatic and good that the specifics of a human right can evolve though interpretation of the individual heads of right; that the prohibition of discrimination can be re-interpreted to prohibit discrimination based on sexual orientation, for instance. This is in line with all reasonable approaches to interpretation of domestic constitutional instruments. The rights set forth in the Magna Carta have changed radically over the last 800 years, yet four provisions remain on the statute books in England, notably the habeas corpus clauses. The proud product of the French Revolution, the Declaration of the Rights of the Man and of the Citizen, is understood as the mother of all later human rights treaties, and, indeed, the Constitution of the Fifth Republic has bestowed constitutional authority on the declaration. In the 230 years since its adoption the interpretation has changed very significantly, however. The Declaration was largely co-created with the Constitution of the United States, and despite all protestation of so-called originalists, of course, the interpretation of the US Constitution has also moved dramatically with the times. Even newer instruments such as the human rights covenants or the European convention are in a constant process of refinement and evolution. That is the way it should be.

What is concerning is that new heads of right do not arise as society changes. And it is equally concerning that we do not define more stringent or more demanding rights as our societies grow wealthier and wealthier.

Given that no universal adherence to the rights defined in the Declaration of the Rights of the Man and of the Citizen has been achieved of the last 230 years and that the newer social, economic and cultural rights are woefully disregarded in many, many states, it is perhaps understandable that there is little appetite for defining new heads of right, and that we leave expansion to be done by interpretation of current instruments or by treaties that are essentially interpretative of existing rights. It may also be understandable that we have not embarked on the creation of more ambitious regional human rights, because this could appear to relativise what we consider absolute rights, and hence undermine them.

Yet, these reluctances are in the final analysis wrong. If we do not define new heads of right after 60 years without more than piecemeal evolution of social, economic and cultural rights and 230 years of fight for civil and political right we are signalling that our societies are stagnant and hidebound. When we disregard an existing fundamental right like that of asylum in order to protect our comfort we are sowing the wind and will reap the whirlwind. Do unto others as you would have others do unto you!

The concern that we relativise basic human rights if wealthy regions develop more demanding human rights is ill conceived, because it is a process of adding. So the basic human rights remain absolute whereas the add-ons are relative to wealth. As the global community becomes wealthier relative rights might transform into basic ones, but while awaiting that, these new rights become a beacon for even the less wealthy nations to ultimate achieve. These new rights become path finders and inspiration where they cannot be fully respected yet.

So what to do in concrete?

One of the structural flaws in current human rights that should be cured is that human rights are understood to be state centred. The entity addressed by human rights is the state, and the obligations are obligations on the state to enable the rights for its citizens or within its territory. This is one of the terrible legacies of the Peace of Westphalia. As Steven Krasner has pointed out, human rights are an imposition from outside on domestic rulers. However, obligations remain with the domestic rulers. No solidarity considerations between rulers are contemplated, let alone obligations on citizens towards fellow citizens. This means that there is no obligation on an able state to come to the aid of a disaster-struck neighbour. This is entirely illogical and a debate on this obvious point has sadly been overtaken by the many reflections on the Responsibility to Protect (R2P) (admittedly a new head of right of sorts). In practical terms it is likely that a responsibility to help is more important than a responsibility to protect in terms of the number of victims at risk. Of course, one does not exclude the other, but it would be salutary, and perhaps less controversial, if a responsibility to help would be put on the front burner.

If that would be the case, the corollary would also have to be discussed, namely the duty of disaster-stricken states to allow help, both from other governments and NGOs. A government that is overwhelmed by a disaster has no valid reason to deny its citizens help from outside, if such would be forthcoming. In fact, it should be an international crime to refuse genuine and needed help from other states or NGOs, despite all the definitional work required on what ‘genuine’ and ‘needed’ means.

There is so much that should be pushed as new human rights. Surely, a most fundamental right for every individual is to live on an intact planet. Hence freedom from climate change is a must – and one of the rights that must be tackled collectively by states, as the Kyoto Protocol sought to do. Yet, even if it is a collective task, the consequence is that there are obligations on each state to undertake all necessary measures within its borders to limit the emission of greenhouse gases. Addressing the avoidance of climate change as a human right would alter the nature of the political discourse.

It is also a mistake to believe that only states or collectivities thereof are at the receiving end of human rights obligations. The good neighbour obligation that should sit with a state adjacent to a state living through a disaster should also attach at the level of individuals. Many states do not make it an obligation of individuals to help other individuals in distress, even if they could. Thus it might not be an obligation, or a crime, to pass a fellow human being dying from thirst with a 2-liter bottle of potable water. This is absurd. Surely the thirsty has a human right to be helped and surely the possessor of the 2-liter bottle must be under a human rights obligation to help. If you open the box of citizen-to-citizen rights, quite a number of new rights will pop out, such as rights of employees vis-à-vis employers.

The obsession with the relationship between state and its citizens has also meant that collectivities of citizens enjoy limited protection. There are rights of association and the like, for sure, but NGOs are not accorded specific rights within states despite the fundamental role they play in our societies. A charter of rights of NGOs would be a very welcome innovation.

Inequality is a scourge of our times and could also be regulated through new heads of right. For instance, inequality is much less pronounced in Germany and the Nordic countries than in Anglo-Saxony, despite the great overall wealth of all these countries. One reason is surely the role of union representation on company boards in Germany and the Nordic countries. This is obviously not a panacea, but it should clearly be a human right to have worker representation on the boards of companies of a certain size.

In terms of regional human rights, in a rich region like Europe it is hardly understandable that there are no human rights specifically addressing the plight of the youth. The right to education is not enough. Unpaid internships are modern slavery. Yet, internships are indispensable for the young in many professional fields. Why is there not a human right to be paid for honest work? Such a human right must not stand in the way of volunteer work, but it is not impossible to distinguish between interns and volunteers. Yet, in the final analysis, why tinker? Should there not be right for the young in Europe to be offered a job in their chosen profession for at least 2 years after their professional qualification? Europe can certainly afford that, and would in any event be richly repaid.

Further along that line of thought, should there not also be a right to have a youth representative on company boards, similar to the suggested general right to have worker representation? And radically, should governments not be obliged to have a ministry dedicated to the concerns of the young, rather than always make that representation toothless by joining it with sports and culture?

Finally, human rights do not occupy themselves with the rights of succeeding generations. They should! The rights of succeeding generations are not only to have a liveable Earth, free of major pollution, passed down, but also to take over a society which did not already mortgage its economic future. In private law we are not in doubt that a child cannot be forced to take over the debts of its parents. Should there not be a human right for succeeding generations to take over communities free of major debt?

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