The promise of human rights

‘Human rights’ is a modern term, but one can trace its origins in documents like the Magna Carta (June 15, 1215), The United States Declarations of Independence (July 4, 1776), The United States Bill of Rights (December 15, 1791) and the Déclaration des Droits de l’Homme et du Citoyen (August 26, 1789). However, it was the atrocities and devastation of WWII that shook states into declaring universal those rights that were enshrined in individual constitutions, bills of rights and other documents.

The United Nations Universal Declaration of Human Rights of 1948 is a declaration of principles that no country, at the time, voted against (eight countries abstained). A declaration is just that, a declaration without any method of enforcement or implementation.

Certain countries and regions (and eventually even the United Nations) decided to go further and enact legally-binding human rights documents.

In 1950, the Council of Europe adopted the European Convention of Human Rights and established the European Court of Human Rights, in Strasbourg, France, set up to enforce those rights by deciding applications filed by individuals.

The court ensures that the 47 member states of the Council of Europe uphold fundamental rights and freedoms, such as the right to life, the right to a fair trial, freedom of expression and protection against torture and inhuman and degrading treatment or punishment. Any person or group of people or non-governmental organisation can, under certain conditions, seek redress in front of the court in Strasbourg.

The words of the European convention and its protocols have not changed and, yet, the European convention is considered by the court itself and by authors and jurists,as a living instrument. Over the years, the court interpreted and re-interpreted those rights and adapted them to changing circumstances and situations.

The court repeatedly states that these rights must be practical and effective and not theoretical and illusory.

Without knowing the context and history of how individuals got their human rights, one cannot understand the forces at play in the defence of these rights. These rights exist in order to protect the individual against the arbitrariness, violence and unreasonableness of the state. Even the most democratic of states is always extremely powerful when compared to the individual.

Human rights become, in this context, the ultimate protection of the individual against the abuse of power of the state. Every person should be a beneficiary of this protection. Threatening to weaken this protection speaks to the reasons these rights exist. Threatening to weaken this protection in a way reminds us of why we need to protect these rights even more.

Human rights are closely linked and cannot be distinct from justice and democracy- Michael Camilleri

A state cannot limit these rights by status, gender, political opinion without contradicting and undermining the very reason for the existence of these rights.

The fact an asylum seeker does not qualify for protection does not divest him/her of human rights protection and if returning that person to a country where that person faces a real risk of harm, deporting that person would be in breach of their rights.

That real risk is not assessed by an NGO or by a government but by an independent court. The way the European Convention is written and structured is clear that human rights are closely linked and cannot be distinct from justice and democracy.

Justice and democracy are ideals that need to be worked at and built upon every day.

The work in human rights, be it the lonely case officer working on the ground with a small NGO or a human rights lawyer or a judge in the European court, helps move towards that unfulfillable ideal.

The threat to weaken this protection shows the weakness of the state in not being able to adhere to the international obligation it has signed up to and be part of the task of building more democracy, more justice and more human rights. 

Michael Camilleri is a lawyer with experience in human rights and refugee law. He has provided legal assistance to refugees and asylum seekers and represented clients in human rights proceedings before the national courts and the European Court of Human Rights (ECtHR).