Monday, 14 February 2011

Thoughts On Legally Enshrined Human Rights

In what is evidently a continuing stream of consciousness and curiosity on the concept of 'human rights' I appear to have now written this:

Human rights are often divided into distinct categories of ‘natural’ and ‘legal’. I’ll deal with ‘natural’ or ‘inalienable’ human rights in more detail in another blog post perhaps, if the momentum for this topic stays with me, but for this post I want to look at legally enshrined human rights because this is the manifestation of such beliefs in an officially sanctioned form. This is how groups attempt to gain international acceptance of their beliefs. Drawing up a declaration of rights is a statement both of those beliefs and the conviction to uphold them. It may be a declaration to defend them with force, or of the anticipation that every right-thinking government will adopt them as of undeniable value and validity. The Declaration of Independence is a famous example, but a much more recent and secular one is the Universal Declaration of Human Rights (UDHR).

The UDHR was drawn up in 1948 as a response to the atrocities of the Second World War. It was the first global expression of rights to which all human beings are considered inherently entitled and is made up of 30 articles reproduced in full at the end of this post).

Freedom of thought, for example, is defined under Article 18 in the UDHR as:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

The above sentence is a good place to start demonstrating what a minefield this exercise is. One aspect of life for some Islamic people is the practice of female circumcision. Although not part of any official religious text it’s been adopted by many Muslims as a religious observance, but has been condemned as brutal and entirely unnecessary mutilation by the many who oppose its practise. This, to me, nullifies any effect Article 18 hopes to enshrine and calls into question how we should interpret freedom “to manifest … religion or belief in teaching, practice, worship and observance.” The UDHR as a whole is not without its critics either. In 1982 the Iranian representative to the United Nations, Said Rajaie-Khorassani, described the UDHR as “a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. The Organization of the Islamic Conference officially adopted the Cairo Declaration on Human Rights in Islam as an alternative to the UDHR and which includes the "freedom and right to a dignified life in accordance with the Islamic Shari’ah".

In relation to Article 25 on rights to health, Andrew Bissell (a supporter of ‘objectivism’) argued:

"Health care doesn’t simply grow on trees; if it is to be made a right for some, the means to provide that right must be confiscated from one will want to enter the medical profession when the reward for years of careful schooling and study is not fair remuneration, but rather, patients who feel entitled to one’s efforts, and a government that enslaves the very minds upon which patients’ lives depend."

This is a good example of how ‘freedoms’ in actuality can become enslavements. Not only can individual articles in practice remove rights, as a whole a declaration can have the opposite effect it is intended to make. To quote Philip Alston:

“If every possible human rights element is deemed to be essential or necessary, then nothing will be treated as though it is truly important.”

There are also issues with the interpretation of some of the ‘freedoms’. For instance Article 26 stipulates " shall be compulsory", but to make a thing compulsory is to remove freedom of choice. John Holt, in Escape From Childhood, says:

“No human right, except the right to life itself, is more fundamental than [the right of a person to peacefully follow their own interests]. A person’s freedom of learning is part of his freedom of thought, even more basic than his freedom of speech. If we take from someone his right to decide what he will be curious about, we destroy his freedom of thought. We say, in effect, you must think not about what interests you and concerns you, but about what interests and concerns us.”

Somewhat controversially, the UDHR includes the word ‘compulsory’ once and ‘compel’ twice.

Human rights can also be split into civil/political rights, and economic/social/cultural rights. The UDHR holds the two groups to be indivisible as only in combination can the different rights successfully exist. Critics claim that the two groups require, by their nature, very different approaches and so cannot be treated as indivisible. In The No-Nonsense Guide to Human Rights, Olivia Ball and Paul Gready point out that some civil rights are reliant on progressive and vague legalities, while some social rights are precise and well-defined by the observable needs of individuals.

Further criticism asserts that the UDHR is rooted in liberal, Western and/or imperialist perspectives and so cannot be considered universal. Some Asian critics such as former Prime Minister of Singapore, Lee Kuan Yew, and former Prime Minister of Malaysia, Mahathir bin Mohamad, claim that individual freedoms and liberties are prioritised lower in Asian values than in Western values. Lee Kuan Yew and Mahathir then went on to assert that this made Asians more suitable for authoritarian regimes than for democracies, which itself was not received without criticism, including a response from Mahathir’s own deputy Anwar bin Ibrahim who accused him of offending “our traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustices”. However, there is evidence to support at least the first part of the claim, that Asian don’t tend to put themselves before their social groups. In ‘Cognitive social psychology: the Princeton Symposium on the Legacy and Future of Social Cognition’ Gordon B. Moskowitz describes the interaction of implicit self-regard and culture. He says:

‘Research on the relation between culture and self-concept suggests that the members of Eastern and Western [culture] understand and evaluate the self quite differently.’

In ‘Handbook of Child Psychology: Theoretical models of human development’, William Damon and Richard M. Lerner describe how research suggests Asians emphasise the fundamental interrelatedness of all individuals within a group and that this relationship, rather than individual freedoms, is the influencing factor to consider:

‘From an East Asian cultural perspective a … European American style – distinct positive and attribute based – is not a mature, fully civilised form of human agency. A strongly held, clear sense of self signals childishness because it entails failure to take full account of and show sufficient regard for the relationships of which the self is part.’

It’s also worth noting that when speaking Japanese there is no fixed word or meaning for ‘I’ as there is in English. In Japanese the equivalent of ‘I’ in a sentence such as “I carried the bag to the car” is changed to reflect the relationship of the carrier of the bag to the owner of the bag. If it’s his boss’s bag the social subordination is reflected in the word used. What we in Europe consider to be a concrete, unchanging self neither holds up cross-culturally nor in psychological research. Language shapes and directs thought. The labels we use in our definitions of words and concepts create models of them in our minds. What we then consider ‘reality’ is our own constructed mental model assembled from our personal, subjective experiences within the context of our own culture. If the concept of ‘me’ is dependent on where I grew up then how can the concepts of what is ‘right’ or ‘wrong’ not be? How can there be inalienable human rights when it appears the concept of the individual human being is not itself an inalienable thing?

This is social relativity. Each individual’s perception and interpretation being wholly and subjectively constructed according to where they are and how they got there; like photons passing a spinning black hole, in their own relative space-time they experience travel in a straight line, behaving as they always do; but to an outside observer their path is a spiral. As a culture we are beginning to accept the notions of relativity in physics, happily using satnav systems every day that incorporate Einstein’s theories to allow for the different pace of passing time on the surface and in orbit. Yet in our own individual experiences we rely on information provided by our intuition and evolved perceptions, despite scientific evidence that they can be, and regularly are, fooled. We cling to our personal narratives, confabulating our way across the gaps, assigning supernatural powers to any unexplored detail of science and wishing fervently for magic in our fiction and our festivals.

If human rights truly were inalienable I don’t believe there would be any need for documents such as the UDHR to attempt to define them. The articles would indeed be “self-evident” and would apply to any person in any culture under any circumstances. I don’t think the evidence allows for that conclusion. Humans are complex and highly flexible things so any attempt to define morals and behaviour is going to be a tough job, and in all likelihood it would need updating every few years for each cultural group. Yes it would be nice if there really was a book of rules we could all refer to and check what’s ok and what’s not, but that concept is a compromise of our personal freedoms at best, a contradiction of them at worst (see my earlier blog post for my take on the logic) and in a more tangible, less philosophical way it undermines one of the most important aspects of adult human life – taking responsibility. As an emotionally mature adult I have the responsibility and multiple occasions to make choices of what is right or wrong, what is necessary or optional, what is a good decision or a bad decision. I won’t always get it right, but I hope for a general trend in improvement. I’d even say we measure someone’s maturity and wisdom by observing their track record in decision-making and responsibility and comparing it to our expectations for someone of their age. If the basis of those decisions is already enshrined in our genes or our psyches how can any moral decision I make be said to be mine? I’m not looking for a god or a politician to tell me what’s right. I’ll read the words and take in the meanings, but in the end the decision of what is right and wrong sits with me. The combined experiences of humanity seem to back this up. Perhaps this is especially so when we consider the behaviour of victims of atrocities because it’s at the extremes or when normality breaks down that we begin to see how things really work. All the theorising and postulating amounts to little more than rhetoric until it’s put to the test in unusual circumstances. Let’s all hope we never really have to find out how our beliefs hold up under extremes.


The Universal Declaration of Human Rights

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty, and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

Everyone has the right to freedom of movement and residence within the borders of each state.

Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

Everyone has the right to a nationality.

No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Marriage shall be entered into only with the free and full consent of the intending spouses.

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

Everyone has the right to own property alone as well as in association with others.

No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

Everyone has the right to freedom of peaceful assembly and association.

No one may be compelled to belong to an association.

Article 21

Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Everyone has the right of equal access to public service in his country.

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

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.

Everyone, without any discrimination, has the right to equal pay for equal work.

Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29

Everyone has duties to the community in which alone the free and full development of his personality is possible.

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

1 comment: