Human Rights And The Universalization Of Interests - Research Paper Example

Human Rights And The Universalization Of Interests Introduction The Human Rights Act 1998 was intended to serve a society as a means of interaction between government and society. An implementation of this Act into UK law was supposed to instil “a culture of human rights”. This research paper discusses advantages and disadvantages of such kind of approach to establishment of social-governmental interaction. The main point of this research paper is to trace relevance of human rights development in UK (Nickel, 1987; Shestack, 1998). Human rights are intended to be the issue of primary concern for the whole world in general and UK in particular. Human rights Act is directed on protection of human dignity. Human rights are actually law prescribed norms of behaviour or templates of dignified behavioural norms. In order to develop humane norms of individuals’ treatment, governments should have cared more about an individual and his responsible relationship with the state and governmental institutions (McIntyre, 2003). A voluntary interaction between government and individual should be promoted in spite of prescribed standards. A list of “enumeration of individuals’ entitlements” is not the best way to develop among individuals a desire to cooperate with government for the sake of their country and themselves. It should be a partnership between individuals and government (McIntyre, 2003). A concept of “participatory citizenship” is a perfect alternative to the Human Rights Act or any other legal document. Relationship between citizens and government should be based on more friendly relationships without any confrontations. A constitutive process with a government as the only leader is a routine struggle with citizens (Ewing, 2001). Deficiencies of rights’ determination and human rights respect in UK First, before speaking in detail about Human Rights Act and its influence on British culture, it is relevant to mention what “rights” mean. Sunstein (1995) mentioned six drawbacks of rights. He talked about nature of rights, which is collective and not individualistic, as it is emphasized in Human Rights Law. Secondly, “rights are rigid” and their absolutist character prevents individuals from any alternatives. Modern world requires more flexible regulations and every state should have a possibility to regulate rights with regard to the state’s culture and historical basis of law. In case with Human Rights Act it is clearly seen that no alternatives are possible (Morris, 2006). For example, in case with right to asylum it is mentioned that the country has a right to exclude foreigners. Alternatively, absolutist and universal nature of rights is justified: “human rights are clearly and unambiguously conceptualized as being inherent to humans and not as the product of social cooperation. These rights are conceptualized as being universal and held equally by all; that is, as natural rights” (Donnelly, 1982). Also, rights should be specific and avoid general claims. In case of absence of rights’ specifications, state’s authorities and governmental institutions can interpret Articles of Human Rights Act in a manner they like. Nevertheless, it is relevant not to break the specific nature of rights in order not to make it excessive in individualism. Otherwise confrontations between government and individuals may occur. Moreover, there is a possibility of occurrence of a severe dichotomy between an individual and the state. In spite of the fact that Human Rights Act was issued in 1998, modern world adds its own corrections into Human Rights Law. Currently, it was noted at the international level that new rights had occurred. For example, there is a concept of “humanitarian intervention” which gives a right to use force against the state in case of “internal specialist violence” (the Iraqi treatment of Kurds in 199117) (Teson, 1996). Moreover, there is a right to “democratic governance” which allows military intervention in order to protect people’s will (Seneviratne, 1999). If such kind of violation of Human Rights Act and other regulative documents occur, the state’s authority and safety will be undermined. There is a necessity to search for a golden mean between culture of dependency evoked by rights’ regulations and irredundant individualistic nature of rights. Rights observance and rights respect should be a background of a positive constitutionalisation (Loughlin, 2001). In such a way, governmental institutions would be aware of their correct rights establishment and individuals would care more about rights exercise. There is a need for a positive constitutionalisation in UK immigration law (Clayton, 2004). Its restrictive nature leads to constant confrontations between UK and immigration states. Human rights violation is often caused by two main reasons: a universality of its nature and a great number of bodies influencing decision making, i.e. so-called public authorities (in accordance with the Human Rights Act 1998). An unprecedented violation of Human Rights Act in UK can be illustrated on the example of the immigration control cases (Stevens, 2004). In one of such kind of cases (R v Secretary of State, 2002) government policy prevailed over human rights. The House of Lords claimed that: “in the human rights appeal of asylum in the Oakington Centre the principle of sovereignty prevailed over human rights” (Clayton, 2004, p. 19). This case is an evidence of violation of the Human Rights Act and the ECHR. On the example of Lord Hoffman and his claim in 1999, in accordance with which human rights would never be violated in UK, and consideration of recent anti-terrorism legislation, it is clearly can be seen that: “the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these” (A and others, 2004). Thus it is possible to claim that currently there is a need in UK to determine government competences with regard to humanity issues. It is essential to regulate interaction among the executive, parliament and the judiciary in order to eliminate a potential basis for human rights violation. An alternative approach of “representative democracy as the guardian of human rights is not relevant nowadays” (Edwards, 2002). It will sooner result in “juridification of politics rather than a further institutionalisation of human rights” (Lord Hoffman, 1999). It is obvious that enumeration of human rights is not enough to protect human dignity; it is sooner needed to regulate competencies of the main institutions (Dawn, 2003, p. 16). Background for human rights culture in UK There are a lot of ideas suggested by researches which will eliminate a possibility of human rights violation. Thus Finnis defines human rights as “the set of principles of practical reasonableness in ordering human life and human community” (Finnis, 1980, p. 280). In accordance with Section 6, 4 of HRA 1998 HRA parliamentary supremacy is a direct way to human rights violations. On the other hand, this measure would endow European judicial institutions to interpret human rights violations in a different way (Klug, 2003). Moreover, it is necessary to determine human rights more specifically in order HRA could become an effective instrument in UK. Section 2 of the HRA 1998 determines human rights in detail, actually, but different states have different bills of rights (Institute for Public Policy Research, 1996). It is also desirable to appoint legal advisers with regard to Section 19 of the HRA 1998 and not to assign this responsibility to a minister. In such a way a neutral and professional look would be given to human rights respect. In UK legal system it is necessary to determine transparently the relationship between ministers and civil servants. For example, in a modern UK there is the “traditional Royal prerogative which enables government to decide to go to a war” (Institute for Public Policy Research, 1996). It is relevant to transfer this competence to the Parliament in order to clarify all aspects of this issue. It is necessary to develop a citizenship, which will serve a favorable background for these potential changes. In this case, a responsible partnership between citizens and the state occurs thus signifying a positive human rights culture. Thus this section represents an approach to human rights in UK and considerations about human rights culture. It is may be clearly seen, that a right way to reduce human rights violations is to develop responsibility among the citizens and “respect for human rights in the government in order to protect human dignity” (Baros, p. 116). A responsible partnership between an individual and the government would reduce government’s powers and develop “a qualitatively new relationship between the individual and the state” (Baros, p. 117). Renovation of HRA 1998 The main concern which was a starting point of a reconsideration of HRS by UK legal system was focused on the exclusive responsibility of the courts in the process of human rights defence (The Joint Committee on Human Rights, 32nd Report). This exclusive responsibility of the courts might have been considered not as a starting point of a culture of human rights thus its efficiency can be questioned. Ligation is not an effective means of human rights culture development, it is rather efficient for individual’s rights protection (The Joint Committee on Human Rights, 32nd Report). Therefore there is a need to introduce independent decision-makers in public services, who will develop and clarify the main goals of human rights culture on the international level and be responsible for a compliance with international requirements of human rights law. At this point it is relevant to mention about the DCA Review presenting innovatory ideas about policy of human rights culture development. The most responsible persons for human rights culture development are Ministers though it is relevant to appoint independent advisers for the sake of UK legal system democratization (The Joint Committee on Human Rights, 32nd Report). The main developmental aspect of human rights culture is a gradual shift from legal sphere into everyday life. UK society was challenged by the fact that there was a lack of independent public representatives who could clarify how to protect human rights in daily life. Every individual in the UK was puzzled by the fact that though there is HRA it is not essential for the public, because there is no a human rights Commission. The latter has been introduced after the Equality Act 2005 was signed (Morris, 2006). A general mistake of the society is its concern about human rights protection as legal document essential for criminals, for example. What about elderly people? They should be assured in their human rights protection as well. HRA implementation in UK is generally a positive moment for the whole society, but what is more important there is a need to resolve questions concerning culture development. The development of British society depends on propagation of culture of human rights as a crucial factor of interaction between the society and the state. In spite of the fact that UK has to transform its legal system and adapt international laws and conventions in keeping the needs of UK, it is obvious that Britain has to follow European Union treaty obligations (DCA Review, 2005-06). There is a need for international laws’ adaptation in the UK for sure, but it shouldn’t be a blind following of international regulations and norms. It should be clarified for the British society that the state’s main goal is not to evade international law, but to complement and develop its ideas and, what is more important, to create a culture based on human rights respect. Public consciousness should response to the issue of human rights and not only courts should be responsible for keeping the law. Consequently, a propagation of HRA is a first step of human rights culture development. In accordance with DCA Review (2005-06), the Human Rights Act is not an obstacle for a correct attitude to foreigners’ deportation. ECHR has introduced such kind of limitations, which limits deportations. Moreover, HRA is often misinterpreted by UK courts thus violating public policy. The point is that courts and ECHR should be blamed for occurrence of such kind of failures and not provisions of the HRA should be considered as inefficient. To create a true human rights culture in the UK, there is a need to work at different kinds of HRA guidance and reviews (Oral evidence on Human Rights Policy, 2006). A necessity to adapt HRA for the needs of a modern British society can be explained by the fact that the main goal of the Committee was to work out a technical instrument “creating domestic legal remedies for breaches of the European Convention on Human Rights” (Baros, p. 15). Currently there is an unquestionable need to establish a stable relationship between the state and the society thus creating “a culture of human rights”. In order to clarify this current need, it is especial to explain the essence of human rights culture. First of all, it should be understood as propagating of an individual who fosters basic respect for human rights thus creating a favorable atmosphere with an emphasis made on respect as the core issue of the society on different levels. Misinterpretations of HRA by courts or officials are considered to be another reason for development of human rights culture. Moreover, the latter reason is considered to be a signal for the revoke of the HRA and UK withdrawal from the ECHR. Lord Chancellor has assured that a clear loyalty to the Human Rights Act right in the UK Government is observed, but the fact that failings still occur should be a strong appeal to the state (DCA Review, 2005-06). A need for HRA in Britain Nevertheless it has been clearly defined that UK respects and follows HRA. The fact that there is no written Constitution in the UK and that people in UK know almost nothing about their liberties, is a strong condition for public respect to HRA. Starting from 1950 UK followed European Convention on Human Rights (ECHR) and starting from 2000 the HRA made it possible to introduce the Convention rights in UK courts. In such a way basic rights and fundamental freedoms became available for UK society. The main point is that British society became aware of a primary necessity for respecting human rights. Respect to other people rights is a guarantee of a friendly social atmosphere. Furthermore Britain felt a great relief when balanced human rights were introduced. Thus a degree of rights should be equal: a right to express one’s views publicly should be equal to an individual’s right to private life for example. Moreover, when balanced rights are widely respected by the society, the relationships in the community are an integrative and full of respect (Articles 8-11 of the ECHR). Therefore HRA introduced a basis for an establishment of a responsible society, where every citizen feels respect towards each other. From the very beginning of HRA implementation in the UK, the courts of the country appreciated the possibility to solve a difficult question about a balance between individual’s rights and the needs of the whole community. Furthermore democratic process in the UK was supported by the fact that Parliament could decide how to alter the law and the HRA “could balance the rights and responsibilities of the lawmaking and judicial parts of UK Constitution” (Dawn, 2003, p. 16). The Human Rights Act was a starting point of a change between political and legal systems. Before the HRA implementation, UK legislation had a lot of vague aspects and issues (Koskenniemi, 1999). Thus HRA became an official clarification of UK legal system. A provision of human rights respect by all public authorities in UK was a new step to establishment of respectful and reliable partnership between the state and the society. Public assurance in their right or wrong actions is an understanding of participation in the social process of the country. An active participation in democratic process would lead to a fairness and a greater unity of the society. The point is that there is a necessity to explain the principles of interaction between the society and the state. A propagation of HRA’s provisions, clarifications and information support would help to represent advantages of HRA to the UK society (Steiner & Alston, 2000). Public assurance in protection of their rights can be guaranteed by the following points: HRA provisions are basic points for human rights respect by public authorities in the UK; human rights principles are basic principles for public authorities while making decisions about people’s rights; human rights is a valuable and sufficient part of all policy making. Therefore a process of implementation of HRA in Britain was marked by the following claims: “the dissemination of such [human rights] culture would not follow the passing of legislation, because the Bill provided for no body to be appointed charged with the duty to promote the Act and to drive forward the "new culture” (The Joint Committee on Human Rights, 6th Report). Therefore a tendency of establishing a Human Rights Commission occurred. Moreover, a tendency of domestic law priority was significant. An establishment of such a Commission would mark a gradual consensus between human rights bodies. Moreover, Commission’s role can be also described in the following way: “[Commission] will make a positive contribution to enabling such organizations, and through them the front line services, to develop a more rights-based approach to their work—to develop a new relationship between the state and its citizens” (6th Report, point 134).Therefore the core aspect of Commission establishment is its ability to shift accents of state-citizens’ relationships from subordinate level to mutual partnership. A need for human rights culture Human rights protection has already proven to be the most striking issue for the modern society. Human rights play an important role essential for political and moral life of the society. Culture of human rights is a basic element of human lives and any nation. It is necessary to define determinants of human rights in order to trace its volubility and efficiency (Franck, 1992; Teson, 1997). The first one is a consideration of human rights in institutional dimension (Butler, p.64). This implies a severe shape and structure of human rights, its goals and activities of public organizations and officials. Ethical dimension of HRA implies consideration of HR in a broader context: “The Convention rights need to be seen as a set of broad, basic values which are accessible to and can be shared by all throughout the UK—and which are fully integrated into the democratic policy making process” (The Joint Committee on Human Rights, 6th Report). Therefore HRA is not simply an instrument of human rights respect, but also a broad context for consideration of human life and determination of human responsibilities. In order to create a human rights culture, it is necessary to work with individuals and inform them about their rights constantly. Furthermore it is necessary to provide information about correct protection of people’s rights, to give them advice by public authorities etc. Interaction between members of the society is another important condition for human rights culture development (Johnson, 2004). The basic points of human rights culture could be explained in three different stages: human rights’ entitlement (i.e. citizen’s equality of their dignity and worth); a sense of personal responsibility (i.e. a respectful attitude to the rights of another person); a sense of social obligation (i.e. a fair balance of individuals’ rights) (Butler, p. 64). THESE LINES ARE FROM THE ARTICLE YOU SENT YOU CAN CHECK AND SEE THE PAGE REFERENCED In such a way, if these basic points are accepted by the society, then UK citizens are on the right way to humane society, more trust relationship between the state and society, a respectful relationship among individuals in the society. Consequently, a striving of British society for a humane society is possible in case human rights culture is established. Civic relationships VS individual liberty At the time of HRA implementation in UK an issue about human rights of minorities was widely discussed. Media highlighted human rights culture in UK on the example of sexual minorities’ rights. In spite of the fact that human rights culture was widely discussed, it can be clearly seen that no special attention was paid to individual’s liberty (Wadham, 1996). With regard to the 2004 Civil Partnerships Act (CPA), this is considered to be the most essential human rights legislation in the UK. It is relevant to consider media representations of human rights as a crucial factor influencing public attitude to human rights culture. With regard to LGBT (lesbian, gay, bisexual and transgender) human rights, British political culture has to shift social attitude in the following way: from “the society suspicious of rights as individualistic and undemocratic and as promoting an undue and undemocratic reliance on law, judges and lawyers” (Kate, 2005, p. 337) to a more democratic and integrated social attitude to human rights. In such a way HRA should be interpreted in a way relevant to UK law. For example, concerning the fact that HRA provides with very few absolute rights (e.g. a guarantee of a fair trial), it is necessary to consider a proper balance between individual rights and public interest (e.g. such issues as respect for privacy and family life etc). In such a way it is possible to claim that in case of proper consideration of the abovementioned issues the executive and judiciary wouldn’t have many clashes (Kennedy, 2001). Therefore it is possible to see the following tendency: unlike previous political tradition of ‘national belonging’ currently there is a shift to a multicultural society with an emphasis on diversity either cultural, religious or sexual (Robinson, 2003). A paradigm of UK human rights culture can be called a ‘popular political culture’, a culture integrating citizens and elites under conditions of shared values. UK current human rights culture can be described as: “A human rights culture is one in which values of both solidarity and diversity are shared, in which individual freedom, and therefore minority rights, are respected, but in which democratic decisions arrived at by majority voting and taken with such considerations in mind are accepted as binding and legitimate” (Kate, 2005, p. 340). A consideration about human rights culture in the UK can be perfectly examined on the basis of consideration of rights for sexual minorities. Human rights culture surely depends on a ‘public opinion’. A public opinion is a reflection of human rights culture in the UK. Media influences formation of a public opinion in the UK (Turner, 2001). A consideration about human rights in British mass media gradually shifted from rights of separate individuals to consideration of the rights of the whole society. It is possible to consider rights as strategic; advancing rational progress; universal principles, intrinsically linked with responsibilities; dialogic; and legal (, 2005, p. 340). At the initial stages of human rights implementation in the British society, ‘rights’ were considered next to responsibilities. Thus ‘gay rights’ were considered in the context of ‘strategic rights’ (Farran, 1996). Nevertheless in the newspapers campaigns for rights of sexual minorities were considered more properly. The UK Government was also represented as the one compelled to meet the terms of the European definitions of human rights (Kate, 2005). Another perspective of consideration of human rights of sexual minorities was a consideration from a perspective of universal principle of human rights. The CPA 2004 has shifted accents to consideration of human rights of minorities from more liberal and progressive point of view. Thus rights of sexual minorities were more balanced with responsibilities and that led to dialogue and alternatives and finally resulted in involvement of human rights of sexual minorities as legal ones (Choudhury, 2003). Concerning the formation of human rights culture in UK it is possible to claim that media highlighted political aspect of human rights (Lord Bingham of Cornhill Lord, 1998). Moreover, an emphasis on individuality and not majority was made. Social relationships were more properly understood and divergences/conflicts were gradually eliminated. If to correlate CPA with HRA, it is necessary to consider Articles 8, 12 and 14 of the latter document. These Articles describe that “everyone has the right to respect for his (sic) private and family life” and “men and women of marriageable age have the right to marry and to found a family” (HRA, 1998). In spite of the fact that these rights must be balanced against social attitude with regard to the HRA, no lawful reasoning why they should not have been more assertively claimed under conditions of fundamental individual freedom and the right to self-expression. In one way or another, there is no strong political support of sexual minorities as basic and radical suggestions for diversity in the UK media (Hoffman, 1999). As a result, a consideration of human rights in Britain on the example of LGBT rights, it may be concluded that there is an emerging human rights culture in Britain, which is currently based on a balanced relationship between rights of individual’s freedom and disrespect to minorities (Smith, 2003). Therefore in spite of political and public context of sexual minorities’ rights, UK human rights culture should be more subjective and related to an individual. Practical implementation of HRA in UK legal system As it has been already claimed a lot of controversies in UK with regard to HRA implementation into practice concerned a lack of consideration about social, economic and cultural rights (Starmer, 2003). Moreover, it is evident that human rights culture in UK are more focused on individual’s liberties or concerns about citizenship than concerns about vulnerable groups: “The culture we need is one which is not always soft when an individual’s rights are in play…The true culture of rights and responsibilities may actually sometimes require us to be quite robust about an individual’s rights to maintain the rights to maintain the rights of others” (Butler, p.69). Nevertheless it is impossible to neglect the fact that a practical implementation of HRA in UK is relevant and obvious. For example, “Article 3 concerning the right of freedom from inhuman or degrading treatment could be practically applied to the circumstances in a residential care facility or to mental health treatment” (Johnson, 2004, p. 117). The Article 6 (about a fair hearing) could be applied to civil cases in the courts and not criminal trials. Therefore we can clearly see that a need for human rights culture in UK is of a social character. Thus there occur ‘second generation rights’ (Seneviratne, 1999). A basis for these rights is economic background and resource allocation. Unfortunately UK Government is more focused on political and civil rights. Therefore it is necessary to adapt the Human Rights Act 1998 (HRA) for realities of UK legal system. It is evident that it is necessary to establish a Human Rights Commission as another governing authority helping to implement HRA into practice (Robinson, 2003). A fact that UK Government rejects a possibility of Commission establishment undermines democratic background of human rights culture. Though it is needed to involve numerous corrections in the process of HRA practical implementation in the UK, the following figures witness existence of a practical aspect of HRA in UK: “Of 431 cases with Human Rights Act implications considered in the High Court or above between October 2 2000 and 30 April 2002, in 318 cases the HRA affected the outcome of the case” (Starmer, 2003; Young, 1999). Of course, there were incidents of incompatibilities of HRA implementation in UK legal system, but there has always been suggested to refer to Section 3 and “interpret Convention rights into existing UK legal system or to work out the common law encompassing Convention rights and jurisprudence” (Starmer, 2003; Young, 1999). In one way or another, it is evident that UK legal system has no stable judicial features but there is a positive tendency to HRA development and adaptation with regard to UK legal system (Van Bueren, 2002). For example, in one of the court cases, the House of Lords was focused on ‘rape shield’ law which didn’t allow courts to consider a rape victim’s previous sexual life. Thus this section was rewritten by Lords and “the trial judge could admit such evidence if it was necessary for protection of a fair trial” (Edwards, 2002; Klug, 2003). Conclusion Once UK legal system started establishing a human rights culture it was necessary to complete this process. The HRA may be adopted by UK legal system as a basic law code influencing relationships between the judiciary and the executive authorities and between an individual and the state. A further successful implementation of HRA into UK legal system is possible in case of gradual changes in legal and constitutional culture occur, but also in relationships between the state and the citizens (Bellamy, 2001). The most controversial issue undermining a true intention of UK Government to establish human rights culture is absence of Human Rights Commission and current development/adaptation of HRA for the needs of UK society and legal system. UK Government’s current position is focused on adaptation of a minimalist executive-centered approach underlining citizens’ responsibilities and propagating individualistic rights in terms of UK current legal discourse. It is an unquestionable fact that human rights culture development in UK would lead to a better protection of vulnerable groups; human rights would be promoted in accordance with international regulations; UK society would be developing in the atmosphere of recognition of each other’s rights and tolerance (in accordance with Butler, p. 69). Moreover it is rather hard to deny the fact that human rights culture should be developed not in the context of regulations imposed by human rights commission on public authorities but in the context of constant encouragement. Thus it is possible to claim that human rights culture in UK is being gradually implemented. There are positive changes in relationships between the state and citizens as well as certain overlooks and drawbacks. In one way or another it is possible to claim that human rights culture in UK is a long-term process requiring numerous governmental and public efforts for the sake of humane society establishment. Works cited 1. 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