Essay: No human rights please, we're capitalists

After 50 years, the language of rights has been turned against those it was supposed to protect, argues Conor Gearty
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It has been a remarkable week. As the Home Secretary brooded on the rights and wrongs of the Pinochet case, the rest of us celebrated the 50th birthday of The Universal Declaration of Human Rights as if we wished to stand by it. There were television events, newspaper and magazine specials: we all gave ourselves a thoroughly good-hearted pat on he back for sharing such a noble idea.

But how much was achieved last week? The Universal Declaration is a manifesto for radical social democracy. Its rhetoric is simple and its message clear. The version of humanity it celebrates has an emotional force that rivals that to be found in Marx and Engel's great communist polemic, written exactly 100 years before. Yet the birthday party was held at a time of great and rising levels of inequality, when impoverishment remains the normal state of life for millions, and when torture and the suppression of civil liberties are still frequently to be found across the globe. Its promises remain unrealised and many of its loftier ideals are in shreds. The Declaration should have been a source of reproach, not of self-congratulation. What has happened to the language of human rights that has allowed this festival to take place, this dance over the corpse of post-war idealism? Was last week a party or a wake?

The Declaration's commitment to democracy was not the empty gesture that the idea of self-rule has since so often become. "Everyone has the right to take part in the government of his country, directly or through freely chosen representatives," it insists. This commitment to the political process is further solidified by guarantees of thought, conscience, expression, assembly and association. There are none of the mealy-mouthed caveats and exceptions based on "national security" that so disfigure other human rights' instruments. The commitment to the rights to life, liberty and asylum, together with the absolute bars on torture and slavery and the guarantees of fair procedures, are indicative of the Declaration's desire to set out its vision of a model democracy based on the rule of law.

The Declaration is not, however, a narrow legal document intended to be chewed over by lawyers. It throws out ideas about life, not handbook guidance on how to assemble them. This is the Declaration's great strength, and what gives it moral force. The drafters were not insistent upon democracy merely because they were mindlessly addicted to self-rule. They believed in a kind of society which they were certain a properly functioning democracy would bring about. These are the articles that rarely get a mention, the human rights now more frequently disregarded than declared. Under Article 23, "Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment." Under the same provision, "Everyone has the right to form and to join trade unions for the protection of his interests." Article 24 guarantees "the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay". Other provisions deal with the right to education (Article 26), social security (Article 22) and to a decent standard of living (Article 25).

Little of the substance of these articles is protected in an energetic fashion, even in the prosperous West, much less in the less well-off majority of nations in the rest of the world. After the malignant 1980s, it is now quite normal to question the basic premise of secure employment and to challenge the sustainability of various welfare and state-pension programmes. New right orthodoxy confidently challenges the basic assumption of the Universal Declaration, set out in its preamble, that "all members of the human family" enjoy "inherent dignity and ... equal and inalienable rights". Behind the rhetoric of low taxes, limited government, individualism and trickle-down, the wealthy have grabbed even more of the share of the world's (and their own nations') resources than they previously had, and have even begun to steal back the concessions to social democracy that were forced out of them at the end of the Second World War.

This has not been achieved by an outright rejection of democracy, at least in those countries where authoritarian capitalism has been judged too great a gamble. Instead, far from delivering on the Declaration's goals, the idea of democracy has been harnessed by the powerful to suit their own ends. So instead of producing a socialist society, democracy - with its low turn outs, voter apathy, propagandist press and strong business influences - now legitimises the kind of inequality that an earlier, idealistic generation was certain its achievement would inevitably end. The same ironical transformation has occurred to the concept of human rights.

The decades since the signing of the Declaration have seen the originally subversive and egalitarian idea of human rights manipulated into a bulwark not for but against democracy and equality. The language of rights has been turned against itself to prevent that which the whole idea, encapsulated in the Declaration, was originally designed to achieve. The fate which has befallen democracy and human rights is similar to that which afflicts many radical ideas when they are grafted on to an unequal society with great disparities of power: first they are co-opted, then largely drained of meaning and then (in a final insult) they are celebrated as evidence of just how good the unequal society has become.

We can see this pattern at work in tracing the history of "human rights" since the Universal Declaration. There have been a whole variety of well- meaning international and regional conventions which have sought cheerfully to be all things to all people, and which have invariably presented their various aspirational goals as "human rights". This has had an inflationary effect on the language of rights and turned much of our political discourse into an argument about individual rights rather than about the communal or common good. This in turn has had a debilitating effect on political discourse, with all sides claiming that their asserted "right" makes them special, and therefore worthy of preferential treatment over and above all other competing interests. But you can't claim the game of politics when all the cards are trumps. At least the damage that has been done here has been often outweighed by the moral intuitions that have been at work, and to which the language of human rights has given expression.

More ominous has been the deeper level at which the language of human rights has operated, which has been altogether more focused and specific and which has involved the courts. The Universal Declaration is partly to blame for what has happened. Article 17 guaranteed "the right to own property" and required that "no one be arbitrarily deprived of his property". Under Article 20, "no one may be compelled to belong to an association". So the two most obvious ways of securing the other rights, a strong body of trade unions and a radical attack on property inequality, were undermined by these contrary assertions. And needless to say, of course, these are the rights that have subsequently been both emphasised and strengthened, particularly by those with most to lose from any radical reorganisation of society that might occur.

The key has been to move these so-called fundamental rights from the political into the legal arena. The United States has long organised its democracy in a way which requires the people to be overseen by unelected judges who have been addicted above all to property rights. The property guarantee has invariably operated as a long-stop guarantor against radical change, and has loudly signalled the sort of democracy in which it was now compulsory to believe. In a series of decisions, the new European Court of Human Rights proceeded to interpret the guarantee of freedom of association in Article 11 of the Convention in a way which sharply undermined the bargaining strength of trade unions, and in a well-known British case the judges actually went so far as to write into the Convention an implied "human right" not to belong to a trade union, thus placing the closed shop off-limits for elected representatives. When the GCHQ employees, arbitrarily deprived of their union membership by Mrs Thatcher, naively thought they could rely on the European Convention, the European Commission soon put them right, holding that their case did not even raise a serious issue relating to a possible breach of the freedom of association provision.

The GCHQ defeat was typical. The Left has, of course, frequently attempted to use the language of human rights to gain advantage to itself, but in the judicial arena at least it has invariably met with failure. The legislation which underpinned the McCarthy-inspired anti-Communist witch-hunts in the United States at the start of the Cold War was held by the Supreme Court to be perfectly compatible with the free speech guarantee in the First Amendment. The German ban on the Communist Party in the 1950s was likewise said by the European Commission to raise no issue of freedom of association, and the later prohibition on certain radicals from taking public sector jobs in Germany was also upheld, this time by the European Court itself. Radical nationalist expression has been similarly controlled, with the Irish and British judges and the Strasbourg European Commission all agreeing that the media ban on Sinn Fein imposed by the Thatcher Government in the late 1980s raised not even an arguable case that freedom of expression had been wrongly restricted.

The management of human rights talk has been a significant part of this covert struggle against popular will. The subversive power of the Universal Declaration has been addressed not by the politics of confrontation but by the subtler means of (selective) legal co-opting, through which the document's rhetoric has come to be enjoyed by the very people who were its target.

So what remains of human rights on the 50th anniversary of the Universal Declaration? Underneath all the suffocating wrappings there remains a subversive insight about human dignity and democracy struggling for breath. In the post-socialist world which we have allegedly entered, there are few other ideas around which even pretend to stand for equality and human dignity. Society needs to give this one air, and to fight to establish its true meaning. The Universal Declaration directly contradicts the legalistic version of human rights that is now prevalent in western democracies. Professor KD Ewing of King's College has long pointed out the many different ways in which UK law offends against minimum international labour standards, and asks why can these not be obeyed if human rights really matter. Certain constitutions such as the South African and the Spanish have shown that social rights of the type to be found in the Universal Declaration need not always be excluded from domestic constitutions. There is no need to accept for ever that the only rights that matter are those that favour the status quo.

Civil society must fight to win back the idea of human rights and to turn it once again to the service of humanity. The Pinochet case shows that international human rights law might have a moral future and that, given the right civic atmosphere, the judges may not stand stubbornly in its way. But the subject cries out for a sharp focus to accompany its moral strength. It has been this lack of intellectual direction that has allowed the idea of "human rights" to be so efficiently plundered in the decades since 1948.

The 50th anniversary of the Universal Declaration should be marked by a decision to start work on a new Human Rights Declaration for the 21st century. Such a document would eschew legal enforceability and embrace the world's civil society as its legislative chamber. Drawing both on the intuition about human worth that is at the root of human rights and on the belief that true democracy is the best means of securing respect for that dignity, such an assembly could work to produce a short blueprint of the key rights for the new century. These would be the benchmarks against which to judge civilised society in the decades that lie ahead. In this way the spirit of the universal declaration could be kept alive. Its future depends on renewal - not veneration.

Conor Gearty is Barrister and Professor of Human Rights Law, King's College London.