Human Rights Lecture to the Human Rights Committee of the Law Society of Ireland
Published: Mon 30th Sep, 2013 | 12:39
‘The Human Rights Discourse –
Some issues of source and prospects for achievement’
Michael D. Higgins
The Annual Human Rights Lecture
Human Rights Committee of the Law Society of Ireland
Friday, 27th September 2013
A Aíonna Uaisle, A dhaoine chóir
May I thank President James McCourt and the Human Rights Committee of the Law Society of Ireland for their invitation to deliver the Law Society of Ireland’s Annual Human Rights Lecture this evening.
Is mian liom chomh maith an Choiste um Cearta Daonna a mholadh as ucht an ócaid poiblí tábhachtach seo a eagrú bliain i ndiaidh bliana. Cuireann an ócáid go mór le comhfhios cearta daonna i gcleachtadh dlí a chur cun cinn, ní hamháin i measc ball an Choiste ach i measc an phobail in Éirinn a bhfuil suim acu sa dlí agus i staidéar dlí.
[I also wish to sincerely compliment the Human Rights Committee for their organising of this important public event year after year, contributing as it does to the promotion of human rights consciousness in law practice among, not only its members, but the wider community of those with an interest in law and legal studies in Ireland.]
When I last spoke on the topic of human rights to such an audience as this it was on the occasion of my giving the final human rights lecture to the Irish Human Rights Commission. The title of my lecture was ‘The Human Rights Discourse: Its Importance and its Challenges’. I drew on some contemporary surveys of the field and some of the authors I felt that had illuminated what was little less than an intellectual crisis in the discourse of human rights.
Among those scholars was Professor Mark Goodale who has edited a recent work that carries the title ‘Human Rights at the Crossroads’ . The issues have not gone away. They remain, they extend and they become more complex.
We remain challenged in our use of the fundamental concept of “universality”. Some scholars that I referred to in my previous lecture favour a “transnational universalism”. The debate continues of course on the origins, or sources, of human rights, and it is a debate that is no longer confined to choosing between Reason and Revelation. The debate now is at the heart of scholarship on the concept of culture. An old divide between what was referred to as Western sourced rights’ theories and Asian or African cultural systems has evolved into a more complex set of divisions in which the different forms of rejection reflect each other within the discourse of each side.
While a rich debate on how the Universal Declaration on Human Rights came into existence, the role of anthropology, the influences on the Draft Committee and the changes during the meetings of 1947 were topics I touched on on the last occasion, drawing among others, on the work of Professor Goodale and the work of Johannes Morsink to which he referred, this evening I will confine myself to just one more speculation on the background to a document that has had so much influence, not only on the discourse on human rights, but on so many human lives – that speculation is as to whether some of the language we find in the text of instruments such as the International Covenant on Economic, Social and Cultural Rights had been part of an early aspirational draft of the Universal Declaration of Human Rights that had Eleanor Roosevelt’s support, but which was dropped only to resurface so many years later in an instrument of implementation.
Ireland’s election to the United Nations Human Rights Council is a matter for congratulation and is a strong endorsement for Ireland’s reputation in this area internationally. Not only does it place Ireland in a significant position as to implementation, but it also throws down a challenge on these matters to which I have referred that have not been adequately faced and indeed are far from being resolved by the international community.
This evening too, I want to move on from crucial areas of definition in relation to human rights – fundamental issues that arise of an ontological, epistemological, political, even moral, kind. I repeat that they cannot be ignored but while they dominate in the literature there is also a significant body of work which is anxious to engage ever more with issues of implementation and I will refer to just one aspect this evening – the possibility of using indicators as essential tools in the realisation of human rights.
In doing this I am conscious that such a development is drawing more interest from among the social work profession, those interested in social advocacy, sociologists and social planners, than it is from the mainstream legal profession. I believe that there is a great opportunity for human rights activists within the human rights legal profession to make a real contribution in this area while remaining as full participants in the larger debate.
It has been my own view, for a long time, that the human rights discourse, in any of its aspects, is not best-served by being restricted within the boundaries of legalism. However one assesses it, the origins of the contemporary human rights discourse come from a political background, a complex set of circumstances, that may be interpreted differently – was the issue one of retaining sovereignties while appearing to commit oneself to a philosophy of ‘never again’ in terms of the depths to which human beings treatments of each other had fallen; or was it a real new beginning? Then too there are all the debates as to whether human rights at its worst becomes a whip by which one nation can lash its opponents as to that discourse has descended to being, at best, a rhetorical resource.
In the end the debate about human rights is tested by its ability to deliver emancipatory release from their conditions for those communities who are suffering the deprivation of such rights. Such communities on the ground, sometimes within nations, sometimes within the guarantees of citizenship, sometimes without, which creates special problems should be real sources of our concern. They are not abstract moral communities.
I do not subscribe to any of the deep pessimisms that sometimes flows from the literature, but I am convinced that we must deal with the philosophical issues and at the same time deliver a set of practices that will enable the experience of human rights to extend. If this is to happen, practical manuals of practice and exchange of information are necessary, and when they are provided they are most welcome.
This is certainly the case with the publication in recent years of ‘Human Rights Indicators – A Guide to Measurement and Implementation’ which is published by the United Nations Human Rights Office of the High Commissioner. I am grateful to Michael Farrell for drawing to my attention the reference in the manual to the experience of the residents of Seven Towers in North Belfast who, with the assistance of The Practice of Rights Project – an advocacy organisation of which the late Inez McCormack was a founding inspiration – used indicators to advance their case.
A press release on the use of the manual by the residents contains the following:
“Residents of the Seven Towers high-rise complex in North Belfast have achieved significant improvements in their living conditions by harnessing the power of statistics. Seven Towers is a social housing complex in Northern Ireland, a 1960s development of 380 flats, the largest development of its kind in the country, and is now very run-down.
The people who live in the Towers, with the assistance of a civil society organisation, Participation and the Practice of Rights Project (PPRP), used qualitative and quantitative surveys to support their case for better conditions and for more inclusive decision making.
They linked their recurrent and serious housing problems to a set of core “right to adequate housing” indicators to monitor progress or lack thereof. It included basic indicators like the percentage of residents with drainage and sewage problems, the percentage of residents reporting dampness and mould in their flats, and the percentage of residents dissatisfied with how involved they felt in decisions by the housing executive.
The residents’ actions continue but, according to the PPRP, they have made substantial progress.”
When I first received a communication on the residents of Seven Towers from Michael Farrell I was forced to address what might be an emerging contradiction in my own recent reflections within the social sciences. I had after all, and quite recently, referred to the moment within the history of economic thought when William Petty announced in 1690 that he was finished with language and from now on aspired to use figures:
“The method I take to do this is not yet very usual; for instead of using comparative and superlative words, and intellectual arguments, I have taken the course (as a specimen of the Political Arithmetick I have long aimed at) to express myself in terms of number, weight or measure.”
In addition I was aware of a very welcome recent and growing debate on the inadequacy of Gross Domestic Product and its inappropriate use as a measure of the wealth of a nation or its people. Further back one of my favourite sources, anthropologist James C. Scott had written of the disaster that flowed from the introduction of ‘cadastral mapping’.
Nevertheless how could one ignore the quotation from economist G. K. Galbraith in the UN guide to which I am referring:
“If it is not counted it tends not to be noticed”
Whatever observations one may have one cannot afford to neglect the power of the present tools that are available in addressing current issues – to quote Leonard Cohen’s use of Patrick Kavanagh’s line “there is a crack in everything that is how the light gets in”. If Government’s and state agencies are using figures to describe their performance on public issues, it must be valuable for advocacy groups, and above all for those who are affected by policy, to demystify the expertise addressed in their direction.
Then too governments themselves in different parts of the world are beginning to see the advantage of figures and measures that have transparency. In time no doubt the value will extend to the discourse at the highest level and may come to be used in the monitoring of compliance with international obligations. However, countries are using measures that disaggregate or dismantle gross indices.
In the press release from the UN guide we are told that in 2009 Guatemala became the first state to use the human rights indicators developed by the Office of the High Commissioner for Human Rights to assist in its reporting to the United Nations treaty bodies on the rights to health, food and education.
Brazil, Kenya, Mexico, Nepal, Sweden and the United Kingdom have also used elements of the framework to develop and meet human rights objectives. Navi Pillay, the UN High Commissioner for Human Rights emphasises that the indicators and the methods in the guide
“.. are primarily meant to inform more comprehensive assessments and are neither designed nor suitable for ranking the human rights performance of states.
The primary objective here is to highlight the human rights norms and principles, spell out the essential attributes of the rights enshrined in international instruments and translate this narrative into contextually relevant indicators and benchmarks for implementing and measuring human rights at country level.”
This debate of course as to the use of indicators is a much contested one. Sally Ingle Merry in her chapter entitled ‘Human Rights Monitoring – a question of indicators’ in Mark Goodale’s ‘Human Rights at the Crossroads’ addresses these issues. She gives as example of the use of such measures the encounter between the six representatives from Turkey and members from the committee that monitors the International Convention on Economic, Social and Cultural Rights (ICESCR) in May 2011 in an elegant room at the Palais Wilson in Geneva, overlooking the lake and the Swiss Alps beyond.
The questions from some of the committee members could be described as somewhat of an abuse as they were based on a level of detail on what was tangential and which distracted frequently from the substantive questions at issue. Prof. Merry suggests that there has been what she calls “a turn to measurement in human rights monitoring”.
There can be, of course, differing views on the significance of this. If I may quote Sally Ingle Merry:
“Over the last 30 years, as the human rights legal system has matured, treaty bodies have constantly grappled with this problem of knowledge. Human rights scholars and treaty body members have advocated greater reliance on indicators since the early 1990s. Many of the treaty bodies routinely request statistical information, disaggregated into relevant categories such as gender for the convention on women (CEDAW) and age for the convention on the rights of the child (CRC). Some have worked on more elaborate systems for producing indicator-based knowledge that rely on both qualitative and quantitative information. The economic and social rights committee (CESCR) has been particularly active in this area, along with CEDAW and CRC. Treaty bodies monitoring the convention on civil and political rights (ICCPR) and the Convention against Torture (CAT) have been far less active, probably reflecting the lesser value of economic and social statistics to their work. Most of these indicators are simple ratios such as maternal mortality or rates of school enrolment disaggregated by gender and ethnicity rather than a single composite human rights index. The committee monitoring the ICESCR has produced a series of General Comments between 1989 and 2009 urging countries to develop indicators and benchmarks. Health, food, education, and social security are phenomena long subject to measurement, so it makes sense that indicators have moved into human rights along this path. Starting in 2005, the Office of the High Commissioner of Human Rights (OHCHR), working with treaty body members and others in an expert group, has created composite indicators for 12 human rights and 2 cross-cutting rights, discrimination and violence against women (UN Documents, International Human Rights Instruments, OHCHR 2008).
Indicator advocates claim that they create specific obligations to clarify the vague terms of the treaties. Indicators operationalise the treaties by translating general principles into specific requirements. For example, CESCR asserts a right to adequate food but does not specify anything about how much food, of what kind, or how it is to be distributed and by whom. It defines rights to food, clothing, and housing broadly:
Article 11: “The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of the right, recognising to this effect the essential importance of international cooperation based on free consent.”
There are obvious lessons for advocacy groups in this most recent turn to enumeration. Not to address the issue of appropriate measurement would exclude from the discourse. An obvious example of this at the present time in the field of economics is the price paid by normative theorists, institutionalists and others in, not only the academy, but in the public media. While Nobel Laureates such as Amartya Sen or Joseph Stiglitz may have drawn attention to the necessity for a reconciliation within the discipline, the shutters are firmly in place outside the more exclusive boutiques of reductive enumeration. A useful recent reflection on this issue was that of the French sociologist Dominique Meda author of ‘The Mystery of Growth’(La Mystique de la Croissance) who was interviewed recently in La Monde. He makes the point, for example, that the measure i.e. Produit Interieur Brut Gross Domestic Product has led to the fetishisation of the concept of growth which is not only fatally incomplete but is itself based on the highly suspect notion that the only issue to be discussed about (undifferentiated) growth is whether there is enough of it and of course the issue of its distribution is a matter to be ignored or, if brought into the political discourse, dismissed.
We do not have to choose between philosophical, ethical and measurement issues. Intellectual rigour simply demands that we indicate how assumptions must be stated, instruments specified, and the contingent conditions constructed; scholarship requires that. If not achieved, description replaces analysis and, even with the assistance of measures that cannot at first view be dismissed, quickly descends into propaganda, often ideologically driven.
It is a question for another day as to what conditions for the discourse might enable the human rights project to be assessed in terms of different economic models or different models of connection between economy and society. The story of the International Covenant on Social and Economic Rights is interesting in this regard.
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nation’s General Assembly on 16th December 1966. It came into force on the 3rd January 1976. The long gap between the adoption of the Universal Declaration on Human Rights in 1948 and the coming into force of the International Covenant on Economic, Social and Cultural Rights is of immense significance to historians of human rights.
This covenant has an early origin that stems from a process that precedes the Universal Declaration on Human Rights, a process that was initiated at the San Francisco Conference, in 1945, when representatives of 50 countries met to draft and sign, on 26th June 1945, the United Nations Charter.
The Charter established the Economic and Social Council (ECOSOC), whose subsidiary body, the Commission on Human Rights, was responsible for drafting the Universal Declaration of Human Rights. Early in the process, the draft document was divided into sections, between a Declaration spelling out general principles on human rights, and a more detailed convention setting out binding commitments.
However, because of significant disagreements between UN member states on the relative importance of so-called ‘negative’ civil and political rights as opposed to ‘positive’ socio-economic rights, the draft convention was itself split into two separate covenants, the first of which became the International Covenant on Civil and Political Rights, and the second the International Covenant on Economic, Social and Cultural Rights, both adopted by the UN General Assembly in 1966.
Ireland signed the ICESCR on the 1st October 1973 and ratified it on 8th December 1989, having reserved the right – I quote – “to require, or give favourable consideration to, a knowledge of the Irish language for certain occupations.”
In a 2007 article in the Human Rights Quarterly, Donnelly, J. and Daniel J. Whelan, 2007. “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight.”Human Rights Quarterly. Vol. 29, No.4, pp. 908-949. Daniel Whelan and Jack Donnelly challenged the dominant contemporary narrative in the history of human rights, which suggests that:
“the West proposed proclaiming at the world level only the civil and political rights … [and that] it was only in a second stage, given the hostility of the Socialist countries and under strong pressure from the Latin Americans … that the West agreed to incorporate … a number of economic and social rights.”
Donnelly and Whelan argue that economic and social rights had in fact become central to the thinking of Western welfare states and to the Western vision of the post-war economic order by 1945, and thus that it is a distortion to suggest that those states, who after all had initiated proposals and policies that addressed the issue of poverty, were automatically the opponents that the dominant narrative suggested.
In a 2013 article, Sally-Anne Way further substantiates the view of Donnelly and Whelan through her research in detail in the archives that hold the papers of the founding moments of the Universal Declaration of Human Rights including the official position of the United States during the drafting period of the Universal Declaration, over 1947-1948. Way, S-A. 2013. “The ‘Myth’ and Mystery of US history on economic, social and cultural rights: the 1947 ‘United States Suggestions for Articles to be Incorporated in an International Bill of Rights’” Dr. Way unearthed a July 1947 text entitled “United States Suggestions for Articles to be incorporated in an International Bill of Rights,” which provides a key piece of missing historical evidence of official US support for economic, social and cultural rights in early 1947.
Indeed substantial parts of this document’s wording and provisions on socio-economic rights are closer to the text of the ICESCR as it would later emerge than to the 1948 UDHR. A number of concepts and phrases to be found in the 1966 covenant – including the concepts of ‘progressive realisation,’ ‘maximum use of resources’ and the specific formulation of rights such as the ‘right to the highest attainable standard of health’ – have roots in this 1947 text.
Way traces these ideas back to Franklin Roosevelt and his administration, who, from 1932 onwards, had framed their New Deal in terms of a new ‘economic constitutional order’ and ‘new rights’. Elected in the midst of the Great Depression’s mass unemployment and poverty, Roosevelt had indeed promoted ideas of socio-economic rights as a strategy to support his New Deal reform and to challenge the laissez faire constitutionalism of the Supreme Court of the time.
Despite Eleanor Roosevelt’s efforts, however though, the position of the US delegation evolved over the course of the drafting process, and by the mid-1947, it was agreed that economic, social and cultural rights should be pursued within the context of a non-binding Declaration. We are left with interesting questions as to how we are to construct this textual migration. Is it a lost idealism? Is it an anticipation of a neat rhetorical sidelining? Is it regarded as something that can satisfactorily exist within the Capitalism of the day? Time does not allow me to speculate just now.
The different circumstances that attach to the adoption of the Covenants on Civil and Political Rights and the Covenant on Social and Cultural Rights introduces the difficulties associated with the concept of indivisibility.
Thus, although at the international level, rights are recognised as equal and indivisible, it has become ‘normal’ to accept the distinction between two sets of rights, as reflected in the demarcation between – on the one hand – the European Convention on Human Rights and the International Convention on Civil and Political Rights, which are concerned with civil and political rights, and – on the other hand – the European Social Charter and the International Covenant on Economic, Social and Cultural Rights, which cover socio-economic rights.
Civil and political rights are customarily understood as ‘negative’ rights that protect individuals against intrusion by the state, whereas socio-economic rights are regarded as ‘positive’ rights, requiring the state to step in and take action in order to protect its citizens against want and need. According to Oxford University Professor of Law Sandra Fredman, this distinction is sourced in fundamental disagreements concerning the role of the State in society:
“civil and political rights grew out of an assumption of the State as potentially hostile, which should be restrained from interfering in individual liberties. By contrast, socio-economic rights proponents regarded the State as essential to the achievement of individual liberty.”
The debate among legal practitioners is not so much about whether socio-economic rights are human rights, but about the role of courts, and the mechanisms in place to ensure the accountability of the State in fulfilling such rights. Is it desirable to create two categories of rights, where civil and political rights are justiciable and socio-economic rights are not?
According to Professor Fredman the assumption of clear cut distinctions between socio-economic rights and civil and political rights is an ill-grounded one. It is often claimed that civil and political rights are cost-free, while socio-economic rights require resource allocation. It is also widely assumed that civil and political rights impose only duties of restraint, while socio-economic rights require positive action. It is, finally, generally thought that civil and political rights are determinate and effective, while socio-economic rights would be indeterminate and programmatic. But the right to belong to a trade-union, for example, is not a resource-intensive one, while the right to trial “within a reasonable time” under Article 6 ECHR can be costly to provide for. As for the categorisation of positive versus negative duties, it does not sustain closer examination: for example, the positive right to housing includes the negative duty not to evict unlawfully.
Therefore, for Fredman, it should be recognised that both sets of rights give rise to a cluster of obligations on the State, known as duties to respect, promote and fulfil. The most interesting part of her argument is that she addresses head-on the traditional charge of judicial unaccountability.
Thus she argues that Parliament is of course the most appropriate forum for making sensitive decisions, but that it is possible to craft a role for adjudication which reinforces the democratic process rather than usurps it. Therefore, while she readily acknowledges that the role to fulfil positive duties should lie with the legislature and executive, she claims that the judiciary too can play a role in enhancing democratic accountability.
For this she draws on a model of deliberative democracy such as outlined by Habermas, which moves from interest-bargaining to value-oriented decision-making based on the persuasiveness of the reasons given.
The detail of her argument goes as follows: decision-makers are bound by human rights norms, but these norms are themselves open to interpretations. Decision makers should be accountable for the decisions they take as to how to interpret and fulfil their human rights obligations in a way which is capable of convincing others that they have indeed fulfilled their duties.
She acknowledges that the function of holding decision-makers accountable for their decisions lies primarily with legislatures, but claims that there is room for the courts to provide a complementary forum for democratic accountability.
To address this, it is helpful to distinguish, as Habermas does, between “interest governed” negotiations, where various parties come to the bargaining table with fixed interests, and without a background set of values against which to measure the validity of their interests, In this model, success depends, not on the power of reason, but on factual power. and “value-oriented” coordination. In the latter model, parties enter the process aiming to justify their position by appeal to reasons that all parties can accept while at the same time being open to persuasion. The background values are provided by the human rights instruments, themselves the product of an earlier democratic process.
Thus, even in the absence of consensus, deliberative democracy can act as a discipline on decision makers, to justify their decisions according to reasons that all can regard as sound, even if not all agree. For Fredman, deliberative procedures are necessary also to establish the background procedural requirements. It is particularly important to ensure that all interested parties are provided with equal opportunities to persuade one another.
The deliberative account therefore acknowledges that judges have neither the legitimacy nor the competence to be the final arbiters on how the authorities should fulfil their obligations, but suggests that they are well-placed to elicit and assess a deliberative explanation against the background of human rights values.
Fredman also proposes a set of principles in which to ground deliberative reasoning. The first is that the very essence of socio-economic rights is to make provision for the most disadvantaged in society. The second places an emphasis on participation, and the need to pay attention to the views of those affected. The third is that rights should not be provided in a discriminatory manner. To illustrate her point, she draws on the way the Constitutional Court of her country of origin, South Africa, developed the term ‘reasonable’. According to the Court, “a programme that excludes a significant segment of society cannot be said to be reasonable … Those whose needs are the most urgent and whose ability to enjoy all rights is most in peril, must not be ignored.” That court has also developed a strong participatory dimension, through its notion of ‘meaningful engagement’. These examples can be illuminating ones, I suggest, if we genuinely want to ensure that economic, social and cultural rights do not remain “the Cinderella of human rights”, as the UN High Commissioner for Human Rights put it in his address to this Society and the Irish Human Rights Commission in November 2009.
Therefore, the deliberative model of judicial review can offer a stimulating template when reflecting on how to hold public bodies accountable for their positive duties. It is not, of course, the only means of doing so. Other accountability mechanisms exist, such as National Human Rights Commissions which must be strong, independent, and endowed with sufficient resources to pursue their important mission.
Indeed, ever since the establishment of the welfare state, in the mid-twentieth century there has been a wide-spread acceptance that the state has unavoidable obligations for the protection of individuals against want and need. Any review of the history of this period cannot neatly divide the period in terms of Left/Right distinctions. The thirty years of Keynesianism that followed World War II had indeed the aim and the consequence of saving the capitalism of the time as is recounted, for example, in the recent ‘Une Autre Histoire des ‘Trentes Glorieuses’ , rather than the ushering in of a new post-Imperial or different society. One may well ask what structural changes were perceived as necessary, what changes political, social or moral were ever envisaged as necessary conditions for the achievement of what was, by any standards, an uplifting text.
The ICESCR opens up with the assertion that,
“in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.”
After recognising the right of all peoples to self-determination and establishing the principle of ‘progressive realisation’, (and it would be well to remember that there is a requirement ,not only to report on, but to initiate the immediate progressive realisation of the rights in question) the covenant goes on to enumerate the rights themselves. The list starts with the right to work under “just and favourable conditions”, which includes, in particular, “fair wages and equal remuneration for work of equal value without distinction of any kind”, “a decent living” for the worker and his family and “rest and leisure” (Articles 6 and 7). The text then spells out the right of everyone to form and join trade unions and to strike (Article 8), the right to social security, including social insurance (Article 9). It goes on to affirm the state’s duty to offer “the widest possible protection and assistance” to the family as the fundamental group unit of society, the right to paid parental leave, and the protection of children from economic and social exploitation (Article 10). It also recognises “the right of everyone to an adequate standard of living for himself and his family, including adequate food and clothing, and to the continuous improvement of living conditions”(Article 11). In Article 12, it proclaims “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Articles 13 and 14 assert the right to education – one that “shall be directed to the development of the human personality” and “shall enable all persons to participate effectively in a free society” – and indicate that, to achieve the full realisation of that right, primary education “shall be compulsory and available free to all,” “secondary education in its different forms, including technical and vocational,” shall be made “generally available,” and “higher education shall be made equally available to all.” Finally, the covenant recognises the right of everyone “to take part in cultural life” and “to enjoy the benefits of scientific progress.”
One can see the value of enumeration in advocacy across any of the above. It is also clear how aggregates can mask progress in any of these areas. The process of monitoring undoubtedly will gain from the widest possible availability of instruments to advocacy groups and I can see how it will lead to progress. What is less clear is as to whether there is an assumption that one can be neutral as to the capacities of different forms of economy, and different forms of economy and society connection, in delivering the agenda of the International Covenant on Social, Economic and Cultural Rights. Once again I repeat my plea for such a pluralism in the teaching and practice of the social sciences. I would just ask all of us to consider for a moment as to what our appropriate reaction might be to the suggestion that all of these aims within the Convention are conditional on the approval of “the markets”, or must carry the valuation as to prospects by rating agencies!
There is much for us to debate on human rights and it is past time that practitioners in the different dimensions of the field came to an understanding of the importance of each others’ work, that the different branches of the social sciences made their contribution and above all that both of these developments engage a public invited to a tolerant discourse in a deliberative democracy.
Beyond such issues as to where we can find a source of human rights, beyond the argument as to the sufficiency or insufficiency of “human dignity” as a concept, beyond the argument as to whether a right arises when it is expressed, or whether it needs the boundaries of citizenship, is a wonderful belief in the capacity of our lives together on this shared vulnerable planet. Some may feel the need for a transcendental source for such a hope for the future. Many more will see it as arising out of shared thoughts and discourse. However, they come to their conclusion, the supporters of human rights must be enabled to listen to each other. While we have a responsibility to continue to reflect on the paradox that Hannah Arendt gave us with the notion of “the right to have rights” which might have functioned as a bridge between the “instrumental legitimacy” of a democracy and the “intrinsic legitimacy” of human rights, we also have to get on with the delivery of human rights where they are most required. That is the power of the example of the residents of Seven Towers and those like them.
Achieving any of the agenda to which I have referred in this paper requires a change in the position of human rights, both as principle and process, in public consciousness and in public debate. I agree with Michael Goodhart when he wrote:
“human rights claims are political claims in the broadest sense. They are normative claims – claims about how things should be – but that is not the same as saying that they are claims about moral truths — to invoke human rights is to challenge the order of things….”.
That is where members of the Human Rights Committee of the Law Society and those who will support them come in.