Human rights are nice, but they shouldn’t be enshrined in law

North Korea is in a human rights spat with the US. EPA

North Korea is outraged over an upcoming conference in Washington DC about its human rights abuses, to which it has not been invited. Pyongyang strongly denies that it has been alienating the human rights of the North Korean people and is threatening to “respond very strongly” to the fact that it is being attacked in this way.

It is a reminder that even international pariahs usually strongly deny human rights accusations. Human rights are almost universally accepted not only as a yardstick for judging our actions, but as a sort of all-conquering legal code whose transgression often attracts the heaviest of penalties. In the latter regard at least, I’m afraid we are deeply misguided.

Whose rights anyway?

It is worth reminding ourselves what a human right is: a category of moral rights that we all have as human beings by virtue of our shared humanity, which exist prior to and independent of the deeds and decisions of politicians and parliaments. Such rights are distinct from other sorts of moral rights that people have by virtue of the particular times, places and contexts in which they happen to be.

They are recognised by a long and noble philosophical tradition, but not everyone agreed with them. The very idea was “nonsense upon stilts” according to the utilitarian reformer Jeremy Bentham, who feared they risked becoming a substitute for effective legislation. In the view of Karl Marx, rights are held by people as citizens in particular social and economic circumstances rather than by human beings as such.

Hobbes: totalitarian. Wikimedia

Even among those who do believe there are human rights in a moral sense, in which I would include myself, there is disagreement about what they are. For instance Thomas Hobbes thought that we had a range of human rights in our natural state, but abandoned most of them when we submitted to the rule of a sovereign or government. From that point on, our only right was to self-preservation, meaning that the state could not deliberately take our life.

Contrast this with John Locke, who thought we had a right to life, liberty and property – which formed the basis of the American Declaration of Independence. In his view these were inalienable rights that the state could not take from us, in a radical departure from Hobbes’ vision.

Human rights in practice

The relevance of this discussion becomes apparent when you look at the human rights codes to which the UK is a party, such as the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR), which binds the UK parliament by virtue of the Human Rights Act.

When you look down the list of rights that are enshrined in these conventions, you realise that they are mere political wish lists – as are the ones by which we judge North Korea. Those who draw up the lists are not infallible.

In my view, it only makes sense to think of human rights when there is a moral duty on everyone or on all states. So you might say that we have a moral duty not to slander others by deliberately telling lies about them. It makes far less sense to talk about a “right to work”, which is in the UDHR for example. It begs the question, who has a duty to provide you with work?

Another example comes from the resolution on cloning, which was passed by the European parliament in 1997. It says that human reproductive cloning is:

A serious violation of fundamental human rights … each individual has a right to his or her own genetic identity.

Whether or not human cloning is acceptable, this is an extraordinary claim. Are we to suppose that the very existence of each identical twin is a violation of the fundamental human rights of the other? This goes to the heart of the wider problem: if a human right is merely what politicians say that it is, why should we give them any particular ethical status?

There is also a second major issue. Even if we could agree on what constitutes a moral human right, it doesn’t mean that they should override the law-making powers of our parliaments. To say that we have a moral right to something is not necessarily to say that we should be given a legal right to it.

To lead a worthwhile life, we need among other things food, shelter, clothing, sex, entertainment, friendship and agreeable physical exercise. We do not need a right to such things. We need them. We can have the things without the rights and vice versa.

When it comes to making and enforcing new legislation, it is important to realise that human rights laws mean that we are being constrained by the views of politicians of previous generations and from other countries, as well as what judges from international courts interpret these views to mean. Why should we do this to ourselves?

The current debate

David Cameron wants the Human Rights Act repealed and replaced by a British bill of rights. Geraldine Van Bueren recently criticised this view on The Conversation.

Repeal: Cameron. Anthony Devlin/PA

I would absolutely agree with Cameron’s proposal to repeal the Human Rights Act, but I certainly wouldn’t introduce a British bill of rights in its place. The problem is not European interference with British sovereignty as such – rather, it is binding parliament with inalienable rights that are nothing more than political rhetoric.

Professor van Beuren argued that the ECHR has been responsible for numerous positive developments in our country of which any democracy should be proud. Maybe so, but these are political matters, not human rights matters. We should see them for what they are.

To suggest that we should repeal the Human Rights Act is not to say that people should be deprived of any particular legal rights. Rather, it is to question the rationale for passing particular laws.

If, say, there is a stronger case for granting than denying prisoners the vote, contrary to what David Cameron believes, they should be permitted to vote regardless of what international politicians have agreed or international judges have interpreted. If there is a very strong case for saying that the state should never be legally entitled to use torture, which I certainly believe, the same should hold.

It comes down to this: a weak case for giving people a particular legal right will not be transformed into a strong one merely because international politicians have signed a treaty which declares that there is a human right to such a thing. If ever Pyongyang took this point of view, I would have no choice but to agree with them.