Chapter 4

The Inevitability of Human Rights

Our subject has previous history as a cuckoo. Human rights have long been good at appropriating the best bits of the past, reconstructing selected episodes from history so as to give the impression of time-lines of moral inevitability. The history-sensitive story is edgier, less conclusive. Writing in the thirteenth century Thomas Aquinas developed ideas about objective right which were to pave the way for the shift to the individual and his or her entitlements with which (via—depending on who you are reading—the later scholars of Grotius and/or Hobbes to the fore) it is fair to say the human rights idea truly begins. Our subject has always needed action as well as ideas, and the term’s first great impact was rooted in its success as a foundational inspiration for late eighteenth-century revolution, in the shape both of the American Declaration of Independence in 1776 and, a little later, the celebrated French Declaration of the Rights of Man and of the Citizen in 1789, and—we should not forget to add—the remarkable Haitian constitution of 1805. This phase was short-lived. Those who float to the top on the power of others risk perishing when their patron falls, and this is as much the case with ideas as it is with people. The collapse of the French empire on the defeat of Napoleon lost human rights their main national driver. Exposed and vulnerable as a result, the idea was duly hacked to near-death through the nineteenth century, the blows being delivered from Left (Marx), Right (Burkeans), and—some of the worst—the emerging proto-democratic centre (Bentham).

Things only began to look up again properly after World War Two. But even then, in its supposed pomp, the universalism of international human rights law that has followed since 1945 has proved less than it appears. The dysfunction was there even when the ground was being laid for its arrival. True the UN Charter does indeed set down human rights as a core value to be respected by all member states. By 1945, however, national sovereignty had fought back and regained its primary position. Though much celebrated today, the 1948 Universal Declaration of Human Rights agreed by the UN’s General Assembly with no dissenting voices was heavily criticized at the time, not for its range (vast and ambitious) so much as for the utter failure to provide any mechanism for realization of any of the rights it so grandly proclaimed. Of course it was said that this was to come later, but when ‘later’ finally came, in the shape of two international covenants agreed in 1966, no proper enforcement mechanisms came with it. How could they when voluntarism remained such a key feature of the UN?

Now the European Convention on Human Rights. It flows out of the same international movement, being an early switch to the regional protection of human rights, a swerve in a more modest direction for sure but one which was probably rightly thought at the time to hold out the best hope of an authentic protection of these entitlements. The capital fact that drove its creation was the need to protect western European states from further aggression after the conclusion of the Second World War. The document is itself a creature of the Council of Europe, set up after that conflict to bind together those nations, whether victorious or defeated, who, exhausted by war, now saw a voracious military power advancing from the east, picking off the weaker members of their continent, one by one. Here there is a stronger element of compulsion. As the first author to explore this space fully, the thrust of the late Brian Simpson’s great work on the subject was of a Convention which was fulfilling an important propaganda function at a critical time.

The Convention took its place among a range of European instruments that were popping up at this time—the new German and Italian constitutions among them— whichwere assiduously going about the business of entrenching human rights as a bulwark against radical change, not a primary defence against Communism perhaps but prominent nevertheless. And the Convention went on to do a very good ideological job, one for which we may indeed be grateful but which we can hardly describe as above the fray. In the mid-1950s, an effort by the German Communist Party to challenge its domestic ban as a breach of the Convention’s guarantee of the right to political association proved unavailing, the case not even getting past the European Commission that in those days acted as a quasi-judicial gatekeeper to the European Court of Human Rights. Later efforts to tackle strong laws against the employment of radicals in the public service (the Berufsverbot) proved similarly unavailing: these had their origins in a response to subversive violence from the Left in Germany but caught more than the proponents of such direct revolutionary engagements.

And what, finally, of the British experience? Human rights have played a role in this (self)-disciplining of Labour, from the UK being among the first to ratify the Convention in the last year of the Attlee administration (in March 1951), through to the decision to allow the right of individual petition to the European Court in 1966, and eventually incorporating the Convention itself in 1998, a move to demonstrate how despite its rhetoric the Party was not really a radical socialist movement at all. Human rights are a necessary way of calming down a conservative electorate’s anxieties. How ironic that they should have become a stick with which to beat the very modest Left? That is what we turn to next.

Britain, Europe and Human Rights