Human rights: Early days or coming to an end?

Abstract

The speech addresses how human rights are being challenged and to what extent we are witnessing the end times of human rights. Neo-liberalism and populism coming from different corners converge and contribute to the erosion of human rights as well as rule of law institutions. Attempts to link human rights to one or the other economic theory contribute to lifting human rights away from their status of being universal. Human rights are not there to substitute ideological systems, instead it is a far more limited project. In the latter part of the speech new bottom-up trends pulling in the opposite direction are highlighted. As an outcome of the financial crisis and the growing inequality, a stronger awareness has emerged globally about the negative consequences of corruption and tax evasion on human rights and democratic institutions. Human rights are regaining a momentum and credibility in that space. This is closely linked to the new human rights city movement, where local communities take greater responsibility in realizing human rights for their citizens. Finally, in this part the mainstreaming of human rights in laws and political strategies is addressed together with the concept human rights by design. The speech ends on a forward-looking note recognizing the immense challenges that confronts the liberal democracy and human rights currently, however, also recognizing the depth of human rights in most communities.

Lecture held at the Toogdag of the Netherlands Network of Human Rights Research (NNHRR), Tilburg on 22 June 2018

1. Introduction

Thank you very much for the invitation to speak here this morning. I look forward to the discussions today and also to exploring ways of strengthening the collaboration between the Dutch and Swedish human rights academic networks beyond what we already have with the Association of Human Rights Institutes (AHRI).

What I will discuss is the extent to which we are witnessing the end times of human rights. Are human rights coming under such pressures from populist and authoritarian forces, as well as from new technologies, that they soon will be disregarded? Have they done discredit to themselves by becoming aligned too closely with neoliberal economic agendas? Or are they stronger than ever, but just changing face? These are some of the questions that I address here today.

I will take a European perspective, since this is where these developments stand out most clearly. Several of the dimensions are, however, seen in other regions as well, as they are indeed global trends. I just have to mention the most recent decision by President Trump to withdraw from the UN Human rights Council. ¹

Having just returned from three days at the People’s Meeting in Denmark, where one hundred thousand Danes met to discuss the state of affairs concerning the Danish democracy and when I look across Europe today, it seems as if the continent is closer to the end times of human rights rather than fulfilling the promises in Article 2 of the Treaty of the European Union. That article holds ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’

Let me just mention a few well-known symptoms of the decline of protection of these values in Europe:

the way European states have received refugees from Syria and elsewhere in recent years, with fences, the agreement with Turkey, and a lack of solidarity, is far from reflecting the values of respect for human dignity;

the poor standard of living of Roma in many Eastern and Central European countries and the treatment of these persons in Western European countries are in many respects not in conformity with basic human rights, nor with the vision of an inclusive society;

legislation that has been introduced over the last ten to fifteen years to combat terrorism, such as, wide powers of surveillance and special court procedures, are not what would normally be expected of a system that claims to provide access to justice and fair trials as pillars of the European Union; and

finally, the deteriorating practice of the rule of law in some European Union Member States might be an additional indicator that the period of respect for human rights and the rule of law is coming to an end.

These examples are illustrative of the challenges Europe faces when it comes to the protection of human rights. They may well underpin the failure of human rights and the movement that has driven human rights forwards.

The failure is in particular articulated by scholars such as Samuel Moyn and Stephen Hopgood. In his book, The Endtimes of Human Rights, Stephen Hopgood addresses the work of human rights advocates and courts. ² His point is that they address either elite issues or mass atrocities but not the ‘every day discrimination and violence, that constitutes 99 percent of the oppression people suffer’. ³ Samuel Moyn’s, critique is along the same line that human rights are ‘[b]orn in the assertion of the “power of the powerless”,’ but eventually ‘became bound up with the power of the powerful’. ⁴ Meaning the neoliberal agenda. In his most recent book, he argues further that human rights may have addressed the ‘status inequality’, non-discrimination and gender equality, but fundamentally missed to address the distributive inequality, basically the economic inequality. ⁵

In the following, I will address some of these challenges before moving on to look at the counter-movements in order not to end on too pessimistic a note.

2. Neoliberalism and human rights

My first question is to what extent neo-liberalism and populism are joining together in eroding human rights and basic democratic values.

A few years ago, a Danish social liberal parliamentarian told me to be careful that human rights are not taking up too much space in the political discourse. Thereby constraining the outer limits of policy making in particular in relation to migrants, refugees, LGBT and other vulnerable groups. ‘These are some of the few areas left for policy-making’, she said.

The neoliberal macro-economic paradigm has to a large extent suspended the openness and future orientation of democratic governance. In the neoliberal world, even the simple act of casting a vote is in many ways only of minor interest since the economy is fixed, and everything that follows from that. Leading politicians on both the left and the right talk about the necessity of certain policies and act accordingly when, yet again, they lower corporate taxes and cut funding for public education and health budgets. In this way, neoliberalism challenges representative government by making the rules of the economy untouchable and thereby the ruling factor.

A strong example of this are the austerity measures introduced in EU countries following the economic crisis in 2008. These measures were developed by the so-called European Troika – the International Monetary Fund (IMF), the European Commission and the European Central Bank. Parliamentary institutions were kept at arm’s length from the key decisions.

When the EU Fundamental Rights Agency tried to intervene in order to ensure the protection of economic, social and cultural rights by stressing that some of these policies would constitute a violation of the Charter of Fundamental Rights of the European Union (the Charter of Fundamental Rights), the reply was that the Troika is not bound by EU law. Basically, the answer was that the Troika is not bound by any law, except for the law of the market.

Human rights and regular democratic processes were seen as a hindrance to efficient and goal-oriented planning and political action. The necessary policies had to be followed, regardless of the consequences. And those consequences we are harvesting today.

The economic crisis made evident the numbness of the political establishment, who were basically bystanders watching others making serious decisions about the future of our societies. Largely, it disregarded the dire effects on the lower, middle and working classes, and in particular the young. In this process, the growing inequalities became even more visible in absolute terms, as well as in terms of being part of or outside the fast-moving globalisation train.

Are human rights part of the neoliberal power as argued by Moyn or are they a matter of David trying to challenge Goliath. In his recent book, Human Rights or Global Capitalism: The Limits of Privatization, Manfred Nowak argues that human rights are rooted in a social welfare model rather than in neoliberal thinking. ⁶ His starting point is Franklin D. Roosevelt’s four freedoms: freedom of speech, freedom of worship, freedom from want and freedom from fear. ⁷ In this way, according to Nowak, human rights move from being part of the “power of the powerful” to becoming an instrument for creating a higher level of equality. Or to turn things upside down: freedom from want and other economic, social and cultural rights have become the victims of the neoliberal agenda.

So, with Moyn and Nowak, we witness how in recent years human rights scholars increasingly read human rights into one or the other economic school.

3. Populism and human rights

Following Manfred Nowak, human rights may even become a double victim in the sense that growing economic inequality and the narrowing of the democratic space are currently giving populist movements in Europe a serious breathing space.

Here I have to go back to my Danish politician and what she said some 20 years ago. Due to the static economic paradigms politicians are struggling to create a new political space for democratic decisions. This is where they are moving to the so-called “value agenda”, in which migrants, especially Muslims, have taken centre stage as an object of collective concern.

The sudden influx of Syrian refugees in 2014 and 2015 added fuel to these developments. The foreigner and his or her perceived foreign values have become proxies for other anxieties that may be more profound, like concerns over the consequences of new technologies, climate change and globalisation. These global questions and challenges are complicated and are perceived to be too difficult to frame politically, especially when solutions have to be found within one economic paradigm only.

The neoliberal political agenda and inequality have paved the way for populism. When using the term “populism”, it is in the understanding of Jan-Werner Müller, in his book, What is Populism?, that populists are those who speak in the name of the “real people” as a way of contesting currently powerful elites. ⁸ Furthermore, he defines them as anti-pluralist, since they and they alone represent the people.

When speaking on behalf of the people, no rules are needed why the populist movements are targeting human rights and any kind of regulation that runs counter to the will of the people. All this goes against legal formalism, and basic principles of the rule of law.

For the populist, basic rule of law principle and separation of powers and in particular courts are barriers to be controlled. This has been well-illustrated by recent developments in Poland and Hungary, where the courts became the first targets of populist governments, to be followed by the systematic weakening of independent statutory bodies and the like. The recent attempts by the Danish government to weaken the competence of the European Court of Human Rights during its presidency of the Council of Europe could be seen in the same light. What has prompted this policy is a populist xenophobic agenda that wishes to dismantle the Court’s powers. These trends are visible all across Europe.

In light of this Moyn’s critique cannot be ignored. The human rights environment could have addressed economic, social and cultural rights more profoundly. It is remarkable that all grounds of discrimination listed in Article 21 of the Charter of Fundamental Rights have been addressed in depth in academic articles or court cases except for the discrimination based on social status.

Nonetheless, it should be left to politicians to choose whatever economic model they find most suitable for their society. Human rights in that sense are universal and should not be entangled with one or the other economic paradigm. Human rights are not there to substitute greater ideological systems, instead it is a far more limited project than what Moyn wants it to be.

4. Ways forward

What I have described so far has been just one side of the coin. There is another side as well, however, a side that offers possibilities and hope. And that side calls for more research. I will highlight four key trends that are part of the more limited project but still address some of the key challenges: increased popular awareness, human rights by design, human rights cities, and evidence-based human rights work.

4.1. Increased popular awareness

First, the growing inequalities have served to make people more alert to some of the structural challenges in our societies. People have obtained new insights that have been stimulated by the LuxLeaks and the Panama and Paradise Papers. Tax evasion, and in particular corruption, have surfaced on the agenda as symbols of the growing inequality.

Previously, corruption was perceived almost as something normal or a nuisance that one had to live with. That has changed on all continents, and the link between human rights violations and the erosion of democratic institutions due to wide-spread corruption is now surfacing on many agendas, including that of the UN Human Rights Council.

Apart from registering the negative impact of corruption on human rights, there is also an increasing realisation that human rights can contribute to putting a face to the victims of what is often perceived as a victimless crime. Awareness about the children who are deprived of their right to education and people not getting access to health care due to widespread corruption or the absence of fair trials are all elements that can at least contribute to condemning corrupt behaviour. We are still in the early days, but things are moving much faster than witnessed before. This is an area where more research is needed. ⁹

4.2. Human rights by design

The second trend, relates to one of the most important steps taken to mainstream human rights into many policy areas in the EU and its Member States. This developed rapidly in the EU law-making process after the Charter of Fundamental Rights became legally binding following the Treaty of Lisbon in 2009.

Since then, EU officials in charge of security issues, as well as in areas such as social affairs, the structural funds and agricultural issues, who would normally not consider human rights, have increasingly begun to realise their relevance. The concept of “human rights by design” is slowly emerging as the way forward. The concept has been borrowed from the IT sector, where programmers were challenged to introduce privacy aspects at the very beginning of the construction of a new IT tool or program. ¹⁰

EU lawmakers can apply the “human rights by design” concept in a similar fashion to all policy-making and law-making. The concept was first introduced in 2014 when the Council of the European Union and the EU Commission kick-started work on a new internal security strategy that led to the adoption of the European Agenda for Security ¹¹ a year later.

The result, while not perfect, was a step forward. The European Agenda for Security is an improvement on previous security strategies in that it considers human rights from the outset and in more committed terms. For example, it states that ‘[t]he Commission will strictly test that any security measure fully complies with fundamental rights whilst effectively delivering its objectives’. ¹²

Human Rights by Design is the logical next step following the legally binding nature of the Charter of Fundamental Rights. Human Rights by design acquired a new dimension in 2018 when all our mail boxes were filled with mails regarding the General Data Protection Regulation (GDPR). ¹³ The GDPR was followed by the European Court of Justice’s (ECJ) decision on Facebook. ¹⁴ The GDPR and ECJ decision can severely challenge the business concepts developed by Facebook, Google and some of the other IT giants.

This may be the beginning of a new era in which the legislature, the courts, the legal environment, and human rights lawyers seriously respond to new technology. We have had about twenty years of a Wild West type of non-regulated environment that has given us a lot of fantastic IT tools to use in our daily life. However, the flip side of the coin is that this development also has added to the anxieties and has, regularly, been at odds with basic human rights standards. We may be at a turning point, and here too there will be a huge area for researchers to look into.

4.3. Human rights cities

Third, currently a very powerful new human rights movement is gaining momentum: the human rights city movement.

The first city in Argentina labelled itself a human rights city in 1997. ¹⁵ Since then, twenty years later, this has become a worldwide movement that is gaining in profoundness and importance, especially in light of the challenges I described earlier. Immediately after the election of Trump, some American cities declared themselves as human rights cities. ¹⁶

In Sweden, in March 2017, the Association of Local and Regional Authorities adopted a human rights policy platform for Swedish cities and regions, ¹⁷ which could be implemented on a voluntary basis. The Raoul Wallenberg Institute has contributed to developing the platform and is now doing research on the processes and impact of the decisions in the regions and municipalities.

In several EU Member States, there is a declining trust in central government, while trust in local government is rising, although from a low starting point. One of the strengths of local communities is that they have it in their power to engage citizens in decisions about their lives. In a time of anxieties, anger and growing populism, this is a powerful instrument that should be used to re-engage people and offer them a sense of control and influence.

In Gothenburg a human rights-based hospital is conducting extensive outreach to the most vulnerable in society, involving them in decisions about their own health and achieved remarkable results. ¹⁸ In this way the hospital established the right to health by involving the local community.

Regarding the extent to which these approaches can be reconciled with the dominant economic paradigms, in particular New Public Management, the Raoul Wallenberg Institute hopes to obtain some answers.

4.4. Evidence-based human rights work

The final trend that I will mention is the call for more knowledge and understanding about how human rights are reflected in our society.

One of the considerable challenges facing human rights issues in both local and national government is that most states still suffer from a profound lack of statistical or other kinds of empirical data related to human rights issues, such as discrimination, access to justice, and violence against women. So, an important tool in ensuring better human rights protection is missing: detailed knowledge about the situation on the ground for some of the most vulnerable people in our societies, and knowledge about what works and what does not.

The work of the EU Fundamental Rights Agency has addressed the problem of this deficit in law and policy-making at the European level and in many European countries. Almost as an early reply to Stephen Hopgood’s critique that no one relates to discrimination, the Agency started in 2008 to develop its methodologies to survey minorities and women. Up to now it has produced major surveys ¹⁹ on ethnic minorities, LGBTI people, Roma, antisemitism, and violence against women. The focus of these studies is not on how the majority perceives the minority or women, but rather to ask the minorities and women themselves about their everyday realities and their confrontation with discrimination, violence or marginalisation. Thereby it is getting into depth knowledge on issues related to inequality based on status.

These studies have influenced important policy areas at the EU level, as well as in Member States, both nationally and locally. The Agency has contributed to moving human rights work from almost strictly legal normative methods to include sociological and anthropological methods as well, which have added important new dimensions to this work.

5. Conclusion

So, are we witnessing the end times of human rights or are we just in the beginning? If we look far into the past through our rear mirror, we will see that human rights have moved slowly and steadily forward for more than 2,500 years, starting with the rule of the Persian king Cyrus the Great. It has been a bumpy journey, but I think that every generation has been able to say that, from a human rights perspective, they would rather live today than in any past generation. Taking another historical view, we need to recall that for 370 years, ever since the Peace of Westphalia of 1648, States have guarded their sovereignty with great rigour. It is only in the last seventy years that this has been challenged by post-Second World War human rights instruments.

In one sense we are not at the beginning, given this long historical tradition. In another sense, however, we are at the beginning, given that supra-national structures have only recently been created to promote and protect human rights when states fail to respect, protect or fulfil their obligations.

Are we then at the end of human rights? Given that aspects of human rights are deeply rooted in humankind and linking this to the mainstreaming of human rights in legislation and everyday actions at the local level, such as non-discrimination, it would seem we are not at the end. However, when it comes to the supra-national promotion and protection of human rights, as well at the protection offered by the courts, we may be seeing some setbacks, since governments and politicians are desperately trying to claw back some lost political territory.