Friday, 28 November 2014

Why the UN Declaration of Human Rights Isn't Quite Right

(From the archives: September 26th, 2003)

Almost everyone thinks that human rights are a good thing. And almost all governments today, even the most tyrannical, pay lip-service to ideals of human rights. Yet, looking around the world, we see governments cynically trampling over basic rights, like property, privacy, the right not to be arbitrarily stopped or detained and the presumption of innocence. And this is happening even in supposedly advanced Western countries, such as Britain and the USA.

So, what is wrong with human rights? This is a hard question. To give myself a chance of answering it, I decided to look at one of the best known statements of human rights. I chose the United Nations' "Universal Declaration of Human Rights,” dating from 1948. I chose it because it is brief (less than 1,750 words) and its text is easily accessible. I chose it, too, because it is one of the earliest formal expressions of the modern concept of human rights. And therefore, I hoped it would give me some pointers to the roots of rights.

I tried, first, to understand the mind-set of those who wrote, and those who approved, this Declaration. They knew that people were outraged by what the Nazis, in particular, had done. They wanted to be seen to do something to safeguard people against future aggressions by similar governments. But they were also establishment people, government people. They did not see us human beings as individuals. Rather, they saw us merely as members of nation-states. The phrase “the country or territory to which a person belongs,” in article 2 of the Declaration, gives the game away.

And they were people of their times. In 1948, socialism seemed to be the wave of the future. So, alongside well-tried Enlightenment ideals like individual liberty and property, they placed little-tried socialist ideals such as social security and "free" education. It is no surprise, then, that the Declaration reads as something of a mish-mash.

I tried, too, to understand what the Declaration was and was not. Those who wrote it were not trying to make a treaty, to be enforced by the United Nations or by anyone else. Their stated purpose was to provide an educational tool, to spread respect for human rights and freedoms. But, by listing so many human rights and freedoms so succinctly, they did more. They provided a rudimentary touch-stone, by which individuals can tell whether or not their (and others') rights are being violated, whether by criminal individuals or by governments.

With this in mind, I set out to explore the Declaration. I soon found that it contained a class of rights, all of which had something in common. All these rights result from prohibitions of actions that harm others. I decided to call these fundamental rights. A fundamental right arises out of a prohibition of the form, "Thou shalt not…,” followed by something nasty.

Fundamental rights enshrined in the Declaration include: The right to life (in the sense of not being murdered), "Thou shalt not kill.” The right to security of person, "Thou shalt not do violence.” The rights to non-interference with home and family, "Thou shalt not invade anyone's home or encroach on their family.” The right to privacy, "Thou shalt not encroach on anyone's privacy.” The right of free and full consent before marriage, "Thou shalt not coerce anyone into marriage.” The right not to be deprived of your property, "Thou shalt not steal.”

Few people would disagree that these fundamental rights should be promoted and safeguarded in any civilized society. The beauty of fundamental rights, too, is that they are easy to measure respect for. With a fundamental right, such as the right to life, you always know where you are. You can check at any moment that you are respecting that right for others. Yes, you can say to yourself, I haven't killed anyone. I'm OK on that one. And an hour later, you can check again. Yes, I still haven't killed anyone. I'm still OK.

Mixed in with the fundamental rights, I found another class of rights with something in common. These rights, too, arise from prohibitions; but prohibitions of a different form. Here, the prohibition begins "Thou shalt not obstruct anyone's freedom to…,” and is followed by something nice. I decided to call these rights of non-impedance.

Rights of non-impedance I found to include: The right to liberty, "Thou shalt not obstruct anyone's freedom to do what they want.” The right to freedom of movement and residence, "Thou shalt not obstruct anyone's freedom to go or live where they wish.” The right to freedom of opinion, "Thou shalt not obstruct anyone's freedom to hold their opinions.” The right to communicate freely, "Thou shalt not obstruct anyone's freedom to seek, receive or give out information.”

Unlike fundamental rights, though, rights of non-impedance carry a rider, which must be added at the end. That is, "…provided they do not violate anyone else's rights.” This makes respect for these rights harder to measure than respect for fundamental rights. But, except in rare cases – where someone is violating, or setting themselves to violate, someone else's rights – we should still regard these prohibitions as absolute.

Thus far, I had not considered the rationale for, or form of, government. But it seems that to assure even fundamental rights requires some form of government. Prohibitions against theft and murder, for example, require a system of law to support them, as long as thieves and murderers exist. And they need an apparatus to bring the thieves and murderers to justice, by force if necessary.

There seems at first sight to be a contradiction here. In the name of assuring rights – such as to life and property – we are to deny the violators the satisfaction of their own rights, such as liberty and freedom of movement? But the contradiction is not a real one. For what we are talking about here is human rights. By violating others' rights, the perpetrators show themselves less than human. We should not, therefore, be worried about violating their rights. So long, of course, as the punishment is in proportion to the crime.

There is another problem too. Some rights conflict with each other. My right of free movement from A to B may conflict with your right of privacy in, and enjoyment of, your property which lies between. There are, of course, civilized solutions to these problems. In this particular case, public (open to all) roads and footpaths. But such solutions do require some form of government, at the very least a just mechanism for resolving disputes.

The ideal of a minimal government, which assures fundamental and non-impedance rights and does nothing more, is at the root of the world-view held by many lovers of freedom. So, how does the Declaration approach the object and role of government? It does not try to say what government is for, but rather includes a number of what I call "wisdoms.” What these represent is wisdom, accumulated in Western societies over centuries, about the best ways found so far to assure human rights. Wisdoms in the Declaration include: Equality before the law. Independent and impartial courts. The presumption of innocence until proved guilty. Periodic elections to government.

There is a problem, though. For introducing government, even minimal government, weakens the absolute prohibitions, which underpin fundamental human rights. "Thou shalt not kill,” when government is introduced, becomes "Thou shalt not kill without good reason.” If you wonder why the weasel-word "arbitrary" appears several times in the Declaration – arbitrary arrest, or arbitrary deprivation of property, for example – this is an attempt to bring the "good reason" factor into play.

The danger here is that a government, even one that mostly keeps to the wisdoms, may become bad. It may start inventing its own rationalizations for violating human rights. "Thou shalt not encroach on anyone's privacy without good reason,” for example, is no protection for our rights against a government that decides that it wants to snoop into our e-mails. And the wisdoms in the Declaration, even as a whole, are not enough to ensure that governments really do respect and assure fundamental rights and rights of non-impedance.

But the Declaration contains more yet. The right to work. A certain minimum standard of living. Rest and leisure. Social security. Education, which the recipients do not have to pay for directly. Most people would broadly agree with the gist of most of these aspirations, if not necessarily the detail. There comes a problem, though, when these aspirations are elevated to the status of rights. For they then imply a claim, by some on others, for positive action. They do not arise out of prohibitions, "Thou shalt not.” Rather, they represent demands, such as "Thou shalt help the economically incompetent" and "Thou shalt pay for the education of other people's children.”

When government puts its force behind such demands, they are, in essence, being made at gun-point. These demands, made in this way, are in direct contradiction of at least one fundamental right – not to be deprived of our property. And they are far less reasonable than the aspirations we started out with. Why should we be required to shell out to support the lazy, the dishonest, or the unpleasant? Or their troublesome children? Particularly when we have better things to do with our fairly-earned money. For example, to make our homes better places to live, or to save for our pensions.

There is another problem too. If an aspiration such as a minimum standard of living is elevated into a right, you never know where you are. You can't be sure that you are doing enough to respect the right. When you check an hour later, you still can't be sure. Is there some boy in Liberia, for example, you should have given a penny to in that last hour? You don't know. You can never be sure you are OK. And it is almost impossible to defend yourself from an accusation that you aren't respecting such a right.

In many cases, though, there is an easy way to turn an aspiration into a real right of non-impedance. The right to work, for example, can be turned into the right not to be impeded in seeking work. The right to a minimum standard of living turns into the right not to be impeded in obtaining the best standard of living you can earn. (In other words, governments shouldn't ever do anything that damages the free-market economy. If only…) The right to social security turns into the right not to be prevented from insuring against, for example, accident, illness or disability.

There is something else wrong with the Declaration. At least one right, which you would expect to be in there, is not. This is the right which the American founding fathers put third behind only life and liberty. Why is the right to pursue happiness missing from the Declaration? Maybe its makers didn't really want us to be happy.

Lastly, the cop-out clause, Article 29(2). This allows limitations of our rights "for the purpose of… meeting the just requirements of morality, public order and the general welfare in a democratic society.” This gives politicians licence to violate our rights for anything they make out to be for the general welfare. Whether "excused" by the latest moral panic, or terrorist attack, or brainwave of some bureaucrat for a new way to inconvenience and belittle us, they can use this "general welfare" licence to violate any of our rights they choose. And they do.

Despite its faults, though, the UN Declaration of Human Rights is a valuable document. For it helped to establish, in very many people's minds, the idea that there are limits beyond which no government may go. That some things are right, and others wrong, no matter what politicians say. It does not, however, go nearly far enough in defending the human individual against bad government.

And changes in thinking about human rights since 1948 have moved against the individual rather than for. The 1966 International Covenant on Civil and Political Rights does not, for example, even include the right to own property!

The ideas, which pass for "human rights" today, aren't quite right. They don't form, as they should, a strong intellectual force to help defend us human beings against bad governments. So, how do we lovers of freedom fix this problem?

We might, perhaps, contemplate a Declaration of Individual Rights. It would be a massive piece of work, as it would have to identify just how far a government may go in restricting one individual's rights for the benefit of other individuals. I suspect that anyone who undertook this task would find themselves writing a Third Treatise of Government, on a similar if not greater scale to John Locke's Second Treatise. And, when all was written, we would have to do a major missionary job to get people's support for it.

I, personally, do not intend to try this exercise. Instead, I am going to see if I can find illumination by turning the problem on its head. Historically, human rights have as often as not been phrased in a converse form, as human duties. I'm going to go back to these roots. Rights are easy to claim and hard to measure. Duties may, perhaps, be harder to evade and easier to measure? I'm going to do some thinking, not about rights, but about duties.

I'll keep you posted with what I find.

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