HUMAN RIGHTS
Fundamental versus Other Rights The Catholic Union is calling on the Government to avoid ‘diluting the concept of human rights’ as part of a consultation on the UK’s international policy. In a submission to the Government’s Integrated Review of Security, Defence, Development and Foreign Policy, it calls for a focus on upholding fundamental human rights both for the international system and for domestic politics. Britain was one of the key architects of the international human rights system. It remains a crucially important anchor for those who advocate respect for human rights and the rule of law. The reputation of the British legal system and its values is extraordinarily widespread and deeply felt. The human rights enumerated in the various international treaties are the subject of binding obligations in international law. In the case of some of the treaties, they are interpreted by supra-national courts, whose judgments bind the States that have agreed to their jurisdiction. These legal obligations were agreed in order to express values of a particular character. These values are described using words such as ‘fundamental’ or ‘inalienable’; they seek to entrench, in binding international law, protection for things which are essential to our humanity. These rights are different from the plethora of what might be called ‘positive law’ rights which are the result of domestic political compromises and are found in domestic legislation. International human rights law therefore has two important characteristics. First, its content is confined to rights that are universally accepted as inherent in being human. Secondly, it can only be changed by the proper processes for changing international law – in this context, an amending treaty. Over the last few decades this system has been undermined. Influential activists and lobby groups have sought to argue that their policy interests, which could legitimately be 30
the source of domestic positive rights in a democracy, should be recognised as being fundamental human rights. They have sought to use the machinery of the United Nations, such as the system of committees that have been set up to monitor human rights treaties, to advance these policy agendas and a number of these committees have been heavily influenced by this approach. Through these committees making ‘concluding observations’ on State reports or through a committee’s ‘general comments’, this has then fed back to domestic policy makers who have been persuaded, erroneously, that what a committee says in this context constitutes international law. This has eroded respect for international human rights law in democratic electorates and by authoritarian regimes. In democratic electorates (whose consent to the system is essential to its continued existence) most people can distinguish between fundamental rights and government or legislative policy. This misuse of the system is eroding trust in it and providing fertile ground for attacks on ‘human rights’ by the media and populist politicians. Authoritarian regimes have sensed that respect for international human rights law is currently low in key democracies and are increasingly testing the boundaries of tolerance for their actions by breaching the fundamental rights of their citizens. These concerns have existed for many years but the United States Department of State has recently published the draft report of the ‘Commission on Unalienable Rights’ which makes some of these points at greater length. It is available at https:// www.state.gov/draft-report-of-thecommission-on-unalienable-rights/. It states: ‘The temptation to cloak a contestable political preference in the mantle of human rights, which are held to be objectively and universally true, and seek a final and binding judgment from a court, tends to choke off democratic debate, which is itself
critical to self-government and therefore to the protection of unalienable rights’ (p 25). ‘There is good reason to worry that the prodigious expansion of human rights law has weakened rather than strengthened the claim of human rights and left the most disadvantaged more vulnerable. More rights do not always yield more justice. Transforming every worthy political preference into a claim of human rights inevitably dilutes the authority of human rights’ (p 39). The Holy See has also made a number of interventions opposing these trends. For example, in September 2020, the Holy See’s Permanent Observer to the United Nations called for strict interpretation of human rights treaties as codified in the 1969 Vienna Convention on the Law of Treaties and pointed out that treaty bodies are not judicial organs, nor their members judges, nor their procedures judicial proceedings. He said that it is not within the treaty bodies’ mandate to provide interpretations of constitutive instruments or introduce concepts not found in the treaties themselves. The Catholic Union urges the government to take the opportunity of this Integrated Review and the creation of the new Foreign, Commonwealth and Development Office to use its international reputation to address this issue through its membership of international organisations. It also urges the government to guard against these trends in domestic law-making. Oremus
October 2020
