‘Rebalancing’ human rights? They don’t belong to the left or the right

Free speech is a fundamental human right, but it cannot be absolute. AAP/Howard Jones

The debate over the need for “rebalancing” of the Australian Human Rights Commission raises fascinating questions about the nature of human rights as a public ideal.

Federal attorney-general George Brandis and others argue human rights need to be reclaimed for the liberal side of politics. The debate over the need to repeal Section 18C of the Racial Discrimination Act has a similar flavour. In this debate, free speech is argued to be a more important human right than the right to be protected from the harm some speech may do.

In evaluating this claim, we might turn to the history of human rights to help us make sense of the broader context. This is a lively area of academic research, with a series of competing narratives.

One narrative sees human rights as emerging from deep within the intellectual history of the west, with hybrid origins in many different cultural sources stemming back to Roman law and even ancient Greece.

Another influential narrative sees human rights emerging in the aftermath of World War Two as a normative and legal shield against the atrocities of Nazism and Stalinism.

A more recent narrative argues human rights only really emerged in global politics in the 1970s and with a much more ambiguous legacy – one caught up in Cold War ideology and geopolitical posturing. In that most recent narrative, human rights represent a “last utopia” – to use Samuel Moyn’s evocative phrase – a symbol of the failure of more genuinely progressive political movements. The papering over of deep injustices remains at the heart of the current world order.

The lines aren’t neatly drawn

The history of a concept almost always reveals a much messier intellectual legacy and thus ambiguous guidance for today. Classical liberal rights – freedom of speech, association, property and conscience – are undoubtedly important to the legacy of human rights. But so too are social democratic rights – such as political participation, employment and anti-discrimination.

On the very issue of balancing freedom of speech with protection from racial discrimination, our most important international human rights documents provide more complex answers than our national debate seems to allow. On one hand, freedom of expression is one of the core human rights outlined in Article 19 of the International Covenant on Civil and Political Rights.

On the other, protection of the freedom from racial vilification is made explicit in Article 4 of the International Covenant on the Elimination of All Forms of Racial Discrimination.

What are we to make of such tensions and contradictions?

We should adopt neither human rights absolutism, nor relativism. We should not think that human rights are impervious to historical change or political debate. Nor should we think they are merely the playthings of ideology.

A healthy politics respects rights

Human rights are political, through and through, and ought to be subject to debate and challenge. But they should also set a framework and tone for our most important political debates.

Human rights are a vital threshold for testing the justifications we appeal to, not only for protection against state power but also for how power can be used to protect and support citizens’ most vital interests. A political culture that takes human rights seriously does not refer to people as “queue jumpers” and “illegals”, or seek to prioritise the “rights of bigots” over racial and ethnic minorities.

And a political culture that takes human rights seriously does not simply rush to proclaim rights without providing the underlying reasons for their value and the responsibilities they confer. If our main political parties did more of the latter, our politics would be immeasurably better off. Divisive debates might not be resolved, but they could be transformed.

Our debates would shift onto a level where the inherent dignity of individuals and respect for our common humanity – the heart of the human rights vision – is a starting point for our public discussions, not something lost in the noise.

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