Human Rights and the Whirligig of Time
| Author | |
| Date | 01 January 2016 |
| Pages | 1-17 |
| DOI | 10.3366/elr.2016.0319 |
| Published date | 01 January 2016 |
“And thus,” says Feste in the final scene of
How is it that, at least in this country and in much of the western world, sexual relations between persons of the same gender have travelled in little more than a generation from the status of a sin and a crime to a status recognised by the law of marriage and protected by the human right of privacy? How is it that the right to private property has shrunk since the great revolutions of the eighteenth century from a sacred entitlement to a conditioned expectation? I don't expect to be able to give more than tentative answers to such questions but, having raised them, I shall need to consider at least one further question: does it all mean that human rights are little more than thistledown, springing up at random and blowing away as time's whirligig spins?
The human brain processes information through a filter of what it already knows or thinks it knows. We visualise the universal through the prism of the local. The historian and jurist James Spigelman calls it the imperialism of the present.
The Hon James Spigelman AC, “Bicentenary of the Coup of 1808: The Annual Australia Day Address” delivered on 22 January 2008.
The linguist Guy Deutscher calls it mistaking the familiar for the natural.Guy Deutscher,
United Nations Organisation,
First, however, it may be useful to consider human rights not longitudinally – in time – but latitudinally, in space.
In 1998 a conference of Asian states meeting in South Korea adopted an Asian Human Rights Charter.
Asian Human Rights Charter, declared in Kwangju, South Korea, 17 May 1998.
It makes an interesting comparison with the European Convention on Human Rights and the EU's Charter of Rights, in part because it is discursive rather than prescriptive, but mainly because it sees the world and its wrongs differently. It is set overtly against the background of European colonialism, which has distorted much of Asia's development and left legacies of authoritarianism. It takes account too of contemporary globalisation and the impediment it represents to national autonomy. Unsurprisingly, therefore, the Asian Charter places the right to democracy high on its list; but it places another right higher: the right to live in peaceBoth are preceded by a version of the right to life which differs markedly from its European counterpart. The European convention, drafted immediately after the Second World War, begins by stipulating that everyone's right to life is to be protected by law. It then qualifies the right by allowing the taking of life not only pursuant to the sentence of a court (it was not until 1983 that a protocol forbade judicial executions) but by way of necessary defence to unlawful violence, in quelling riot or insurrection, or “in order to effect a lawful arrest or prevent the escape of a person lawfully detained”. How do you effect an arrest by killing the suspect? And why should the prevention of escape from custody justify homicide? The Universal Declaration, adopted two years earlier, contains no such reservations: “Everyone has the right to life, liberty and the security of person.”
I mention these anomalies not in order to devalue the European Convention, composed as it was in 1950, but in order to emphasise that it too is a child of time and place. If it were being drafted today, it would without doubt include a right to a wholesome environment. Drafted in 1998, by contrast, the Asian Charter's right to life does not treat life merely as survival hedged by conditions: it expands it to embrace a healthy existence in a clean environment
Asian Human Rights Charter, Article 3.2.
– something which the Indian Supreme Court had by then done by way of interpretation of the right to life recognised by the Indian Constitution.Constitution of the Republic of India, Article 21 (protection of life and personal liberty), as interpreted by the Indian Supreme Court in
The approach of the two instruments, European and Asian, to sex and age discrimination differs radically. The illustrative list of forbidden grounds of discrimination in the European Convention, which relates only to the enjoyment of the Convention rights, includes sex and race but does not include infancy or age. To protect children from adult violence Strasbourg has had to resort to the separate prohibition of inhuman or degrading treatment. The Asian Charter starts from somewhere quite different: it acknowledges the presence in most Asian societies of profound historical and cultural gender inequality, and of grave underprivileging and exploitation of children, and it calls upon member states to work towards the eventual elimination of these injustices.
The difference of provision flags up a historic gulf between east and west. Where the Council of Europe has been able from the start to require member states to place men and women on the same plane and to keep them there, Asian states are looking at entrenched patterns of oppression and discrimination which it may well take generations to redress.
Still outside the west, Islam has its own take on human rights. Although there is no human rights treaty between Islamic states mirroring the European one, more than one endeavour was made during the 1980s and 90s to draw up a code which would match the secular codes of the west. In 1981, to mark the beginning of the 15th Islamic century, a Universal Islamic Declaration of Human Rights was promulgated by the Islamic Councils in London and Paris, “based on the Qur'an and the Sunnah”: another amber light. Islamic texts on human rights have been prey to the Sunni-Shi'a divide, on the face of it a doctrinal dispute about the correct textual sources to supplement the Qur'an, in modern reality a cause of, or more realistically an excuse for, tribal and national bloodshed. Even so, the Paris declaration appears laudably unequivocal in its prescription of equal treatment of the sexes and freedom of religion within the law. The equivocation comes in its glossary, which defines the word ‘law’ as meaning the Shari'a, a system which does not treat women and men equally and which makes Muslim apostasy a capital offence.
Universal Islamic Declaration of Human Rights, promulgated 19 September 1981, Glossary of Arabic Terms.
The 1981 declaration is generally regarded as less approachable than the Cairo Declaration drawn up in 1990 by the Islamic Conference Organisation and formally adopted by a number of Islamic states.
Cairo Declaration on Human Rights in Islam, adopted at the Nineteenth Islamic Conference of Foreign Ministers held from 31 July to 5 August 1990.
But the Cairo Declaration too is explicitly based on and subject to the Shari'a. Accordingly it too fails to protect all religious belief equally, heresy included, or to insulate apostasy from reprisal. It has been criticised not only for these and other internal flaws but as a calculated attempt to undermine the broad guarantees of the Universal Declaration, to which many Islamic states are party and which in any event now forms part of international lawThe Universal Declaration includes a right to freedom of thought, conscience and religion which explicitly includes freedom to change one's religion or beliefs.
Article 12.
The Islamic codes deny Muslims this right. The main reason why Saudi Arabia abstained from endorsing the Universal Declaration in 1948 was that it included the right to change one's religion. But religious exceptionalism is not confined to the Islamic world. Ever since the churches in the UK demanded exemption from the requirements of the Human Rights Bill there have been insistent claims that aspects of Christian belief and practice should be ringfenced from the general requirement to respect the human rights of others – claims to which the United States Supreme Court has recently been showing itself sympathetic.You might have expected the proposed British Bill of Rights to feature in this latitudinal survey. But the repeated political promises to replace the Human Rights Act by a domestic bill or charter of rights, now prominently back on the political agenda, turn out – so far at least – to have little to do with its substantive content.
The proponents of a British...
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