History ought to make us scared about today - there are people looking out from behind fences. Again
From a perspective of someone living in peace and in safety it may at times be … hard?... to understand that the peace and safety s/he is enjoying is the result of decades, if not centuries, of thought about how the rights of individuals ought to be guaranteed, protected and implemented (obviously admitting that in many parts of the world, for many people this has never fully been obtained). It is, in these days, of the utmost importance to take a moment, perhaps even a moment every day, to focus on what we have, what we are facing and what we risk if we forget how we got here. There are photos in the media these days. Of people huddling in the cold. At a fence. They seem familiar, those faces. And they are. We have seen them before. More than once. One of those times was about 70 years ago. These days the fences are there to keep them out. But the fence is there. And so are the huddled, freezing people. Have we forgotten what happened last time?
It is perfectly OK if not everyone knows that the Magna Carta was created in the 13th century to protect (some) subjects from the arbitrary whims of King John. But it is not OK if we are not aware that the rights we, legally, benefit from today came out of a discourse about some people being more deserving than others, a rhetoric of "us" and "them", a discourse eroding humanity, a humanity which today is legally codified in instruments legally protecting all of us. And these rights that many (if not enough) of us have benefited from for decades can disappear again if those in power are not held accountable. Those pictures of the faces behind fences are a sign that we need to wake up and stand up. Have we completely forgotten that last time such hungry, cold and huddled faces stared out from behind fences in States that have for decades claimed to be Human Rights Champions, we saw a World War? If we do not remember we, who up until now have been spared that fate, may end up staring down a barrel of a gun again. We do not need to look far back nor far abroad to see what happens when rights are not respected! Have we completely forgotten our values in favour of numbers, measuring profit, measuring only what can objectively and easily be counted? Are we completely ignoring how inequalities and violations of rights never created safety, security and prosperity in anything but the very short term for the very few?
Historically, international norms and standards did not generally “infringe” upon absolute state sovereignty with very few exceptions. However, International Law has developed significantly over the past 100 years or so. It is now accepted that the international community sets international standards that states must follow in their dealings with individuals in their jurisdiction and/or on their territory. This is very clear in relation to Human Rights Law, International Humanitarian Law, as well as International Labour Law. Transnational Criminal Law also sets up standards for cooperation as well as legislative criteria influencing national systems. Regional Courts influence national implementation of international and regional standards and national jurisdictions influence each other. This all has a direct impact on individuals and groups of people and the parameters for how states exercise their sovereignty in relation to people as they have to conform to international standards.
It is crucial to move away from thinking that state sovereignty and safety is opposed to protection of rights - the two are not opposed, on the contrary they are, not even two sides of the same coin but simply the same coin! States use their sovereignty to enter into international agreements, it is on the basis of sovereignty that States protect people on their territory and under their jurisdiction. It is on the basis of sovereignty that States ensure our rights and the rule of law – and thus exercising sovereignty means creating a safe and secure society for everyone on a territory. The more effectively rights are respected for everyone in society the safer the society becomes; the more cohesive and inclusive the society is the more effective the respect for everyone's rights the less poverty, insecurity and exclusion. This benefits not only the individuals concerned but societies at large. Exclusion, marginalisation and insecurity has never created prosperous and safe societies.
An important point is to remember that no person is more “deserving” of protection or of being safe, warm and fed than others. Any discussion of “deserving” of protection implies an opposite “undeserving,” which goes fundamentally against the values and principles not only of human rights but—I would think—also of “humanity” itself. There seems to be a tendency to have an “us v them” discourse – “us” being those of us who somehow have our rights guaranteed because we “deserve” them – and then the others. For people who have always lived in peace and safety it may be tempting to think that this is a given – but if we do not remember history and do not remember what focusing only on the rights of the few means then we will soon find ourselves amongst those Others – and then hoarding toilet paper will seem a minor problem (for those not reading at the moment of posting, this is being posted in the times of the covid-19 crisis where a surprising and urgent need for toilet paper seems to have manifested itself in a number of households in many societies). We need to move away from this current trend sooner rather than later or we may see ourselves at a point from which it will be difficult to return.
Human rights are the fundamental rights that every person enjoys (legally – not always unfortunately in reality) regardless of nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. Human rights empower and protect individuals against actions that interfere with fundamental freedoms and human dignity by delimiting state power as well as obliging states to take positive measures to guarantee that these rights can be enjoyed by everyone on their territory. International human rights law legally guarantees human rights whose core principles are:
- Universality & Inalienability: All persons enjoy human rights and they should never be taken away from a person except in very specific situations and according to due process. This is reflected by the fact that all states have ratified at least one, and the majority of states have ratified four or more, of the core human rights treaties. It is also important to note that effective implementation of human rights take into account cultural specificities and does not “bulldoze” a specific view point through – human rights is exactly about empowering people to have a voice, protecting any individual in any moment against the potentially harmful actions of someone stronger.
- Interdependency & Indivisibility: Human rights are dependent on others’ fulfillment in order to be exercised. For example, certain social rights such as health and education may be necessary in order to take advantage of certain civil and political rights and a violation of one right will very often result in violations of several related rights. Those who have had their rights violated are often much more vulnerable to further rights violations than those who have lived with their rights guaranteed.
- Equality & Non-discrimination: States must ensure that human rights are applied and respected without any discrimination based on any grounds, including but not restricted to sex, race, color, language, religion, political or other opinion, national, ethnic or social origin, membership in a national minority, property, birth, age, disability, sexual orientation and social or other status.
Rights and states’ obligations towards anyone and everyone on their territory or under their jurisdiction can be found in a number of international instruments and these have many important aspects in common—but one perhaps particularly merits underlining: they are all negotiated outcomes with binding effect upon signatory and ratifying by states. Their implementation may be progressive in some cases and we may need to focus our attention on how best to implement them in meaningful ways—but let us never doubt that the individuals concerned are guaranteed the rights found in these negotiated outcomes; that would be legally faulty. Another point that may merit underlining is that—as negotiated outcomes—international treaties, like national legislation, are not utopian, nor do they depart from reality in the requirements of the duty bearers. Law, also international law, is pretty firmly rooted in reality and feasibility.
If we are serious about securing our own human rights, won over centuries of debates and of developments of hard law and enshrined in today’s international treaties as well as in many regional and national instruments, we cannot sit back and witness, or even actively take part in, the erosion of the respect and protection of rights of those who are effectively under our jurisdiction. To do so would be to put in jeopardy the very foundations— legal as well as philosophical—on which our societies—national, regional as well as international—are based. And if we start showing persistent disrespect for the legal rights of some, it is but a small step before we erode the rights from which we benefit, legally even if not always in practice. Any discourse today that does not recognise the rights of everyone and the inherent benefit of society of such respect in creating safety and prosperity instead of division and unrest creates a dangerous environment for all of us. And it is an environment of want and fear and inequality which we have seen before with dire consequences.
The multilateral fora existing today, while by no means perfect, came about after two world wars. After humanity staring down the abyss and realizing what happens when there is no accountability for those in power and when the “us v them” discourse takes over. Those fora did not come about one day because someone had a hilarious idea—they were created as a reaction to experiences of strife and war and general human misery. In the hope that creating such mechanisms those in power would be held in some sort of check—that they would turn to negotiations before aggression, that they would follow certain rules when it came to the treatment of subjects, that they would follow certain standards when it came to governing. Rights—and here I am thinking all possible sort of rights we as individuals have (that we legally if sadly not always practically benefit from) that are derived from numerous international instruments, national laws and constitutions and longstanding legal traditions, have been codified in their present form because of our form of government/state system—rights, laws and the rule of law are not abstract notions. Not principles to aspire to. For centuries—if not longer— it has been a recognized fact that individuals need a degree of protection from those in power, and that those in power need to be held accountable and to uphold certain agreed-upon standards. The rights we legally all have, have been fought for and won with sacrifice over centuries. If one studies legal history there are traces of treaties or legal thinking on individual rights and accountability of those with much more power than the average person dating back thousands of years.
I have had my rights respected all my life. Why? One simple chance - a freak accident if you want - where and when I was born. Human Rights, be they enshrined in an international instrument, or in the national laws that are supposed to protect us all every day, are there to make that freak accident a little less significant. To even out the chances for everyone just a bit. And if we do not protect that system, if we do not protect the rights of all people, if we do not stand up for the judiciary, if we do not realize that rights are not automatically granted just because we’ve benefited from them, or that no one deserves rights more than others—then we put ourselves in jeopardy.
For anyone working on migration it is clear that these days migrants—a group that legally has rights—seem to be legitimate target; if that continues then who will be next? Those photos of people huddling in the cold. At a fence. Those photos depict something that is profoundly wrong. They depicted something profoundly wrong 70 years ago – but what is supposed to be different today? What is different is that those people have rights, based on the aforementioned negotiated outcomes. And that states have obligations—legal obligations—towards them. In Europe particularly, it can be seen at the European Court of Human Rights that these are not only empty words. And still we see a great problem when it comes to implementation. And what is particularly scary is that this “us v them” discourse, the “some are deserving, others not so much” seem to take firm root in countries that for decades, if not centuries, have portrayed themselves as rights champions. We need to wake up and we need to remember.
We may be standing at a crossroad here. And we may have to be very, very attentive to how states treat the non-nationals who are seeking protection, decent work, decent lives. Why? Because if we stop respecting the legal standards protecting the rights of one group, then it is only too easy to imagine that this will only be the first group to see its rights eroded. If we start ignoring the fact that protection of rights creates a society in which we are all safe and in which we can all live peacefully then we are on a road that endangers all of us. And that is something we need to be able to communicate better: that international law and standards are not abstract notions but relevant for all of us. That once we start thinking “us” versus “them” then very easily we will become one of “them.”
This has been written solely in my personal capacity and cannot be seen to be the expression of the opinion or views of the organization I work for.