Tuesday, September 1, 2015

Barend Vlaardingerbroek: When rights aren’t right


A stock way of dismissing objections to what someone is doing is for that person to defiantly assert that s/he has a right to do it. This often works. 

The term ‘right’ has an authoritative legal ring to it, although it is often not a legal right that is being alluded to – ‘right’ in common parlance tends to be used in a normative sense, which is to say that which ought to be (in the speaker’s view) rather than that which is. This can create apparent paradoxes, such as a man barred by a court from contacting his children adamantly insisting that he nonetheless has a right to do so.

Rights have been on a roll for the past few decades. The pattern that has emerged with the wave of social-transformative causes they have been associated with is: claim it as a right, silence opposition by making opponents look as though they’re depriving people of their rights, turn up the heat on MPs and eventually the law-makers will concede. The first of these steps often comes down to creating a right where there isn’t actually one to begin with. Legal academician Philip Alston complained way back in 1984 that rights were being “conjured up” left, right and centre “as though by magic”. The formula has worked well. As examples, abortion on demand was turned into an issue about a woman’s right to control her own body (thereby effectively creating a right to abortion), and same-sex marriage became an issue about people’s right to marry whom they wished (thereby creating a right to marry someone of the same sex). (No, I’m not ‘anti-abortion’, I’m just illustrating how the bunny-out-of-a-hat rights-creation process works.) Of late, some interesting noises have been coming out of Europe about it being a ‘right’ for illegal migrants to enter and stay in Europe – one to watch.

At the national level, actionable rights are created by parliaments, defined by statute, and enforced by the courts (in Common Law jurisdictions, rights are occasionally also created by courts). But in order to claim the moral high ground, the rights movement has increasingly shifted the focus onto so-called ‘universal’ or ‘basic’ human rights. This begs the question that there is a universal consensus about what basic human rights are, which there isn’t – there are cultural and ideological aspects to the ‘rights’ mindset. I recall a debate between The Times of India and Beijing Review about 30 years ago in which each claimed to have the better human rights record. The Indians said they had the better record because people could vote. The Chinese said they had the better record because everyone had enough to eat. Alright, so I’m oversimplifying the arguments put, but it is clearly the case that different conceptions of human rights are being invoked. And it is not only regimes of dubious ethical credentials who have quibbles with the Western European conception of human rights – Lee Kwan Yu was a prominent dissenter in this regard. Africans too tend to adopt a more ‘collective’ approach to rights, as is inherent in the title of the African Charter of People’s and Human Rights.

At a pragmatic level, unless ‘universal’ rights are incorporated into domestic law, delineating them – let alone enforcing them – is fraught with difficulties owing to the weak-as-water legal basis of most of those rights.The Universal Declaration of Human Rights is often cited as an ultimate authority, but the UDHR, being a UN General Assembly resolution, has no legal force – only Security Council resolutions do. The UDHR underpins two treaties of 1966, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The former has legal effect, but the Western powers saw to it that the latter did not – it is non-judiciable. There are numerous other human rights treaties of the ‘toothless tiger’ variety, such as the Convention on the Elimination of Discrimination Against Women.

The human rights field is awash with platitudes that are too nebulous to translate into enforcement action. A right has no legal effect unless boundaries are drawn around it. The ‘right to education’, for instance, does not specify what kind of education, or its duration. The UNESCO position on this right is that all young people should have access to a basic school education, which is to say primary plus lower secondary schooling – in practice, 9 or 10 years. However, this is a recommendation and is not justiciable.

International human rights law moreover allows for a ‘margin of appreciation’, which is to say the leeway afforded to nation-states with regard to incorporating international treaty rights into their domestic legal systems. The most shining example of this principle would have to be the ‘right to life’ in the European Convention on Human Rights, which is followed in the same sentence by the exception of capital punishment where that remains on the books. The ‘right to life’ is referred to as an ‘absolute right’, but all that means in legal jargon is that a signatory cannot enter reservations against that provision and cannot ‘derogate’ that right (i.e. trump it with a competing right). There is nothing ‘absolute’ about this or any other human right, whatever the absolutism of human rights zealots suggests to the contrary.

Human rights crusaders overlook these inconvenient niceties as they aggressively pursue their global social engineering agenda. They read into international human rights conventions and declarations whatever they like, which sometimes amounts to sheer fabrication, such as reading a right to same-sex marriage into the UDHR (see http://www.amnestyusa.org/our-work/issues/lgbt-rights/marriage-equality). They have got their hooks into education and disseminate their propaganda in schools with the authorities’ blessing – the ‘global human rights education project’. One of the big players is Amnesty International. Turn to their UK website (http://www.amnesty.org.uk) and from there to the ‘Teaching Resources’ page, where you’ll find a ‘game’ for 5- to 8-year-olds to teach them that a family can have two Mummies or two Daddies, the recruitment of 7- to 11-year-olds as ‘activists’, and plenty more along similar lines. This ‘human rights education’ isn’t actually ‘education’ at all, but an integral part of a global social-transformative  agenda in which it plays the roles of indoctrinator and recruiter. You’ll find that agenda embedded in many a ‘social studies’ curriculum and being shoved down kids’ throats by many an ideologically committed teacher.

Parental rights to transmit their values to their children are being sidelined, and as for teachers who don’t like being forced into the role of transmitter of values that they find objectionable or even abhorrent, they can go find another job.This is not what State education in a democratic society should be about. It’s time for concerned citizens to take on the hijackers and their moles in government ministries and departments. For when zealotry meets apathy, zealotry wins.

Parts of this article are based on my recently published paper ‘The Shaky Legal Foundations of the Global Human Rights Education Project’ with the Journal of International Social Studies. This may be accessed through http://www.iajiss.org/index.php/iajiss/article/view/187. If this link does not work for you, email me at bv00@aub.edu.lb and I will send you a pdf file containing the paper.

Barend Vlaardingerbroek BSc, BA, BEdSt, PGDipLaws, MAppSc, PhD is Associate Professor of Education at the American University of Beirut.

6 comments:

Brian said...

“When is right not a right”? When it is wrong!!!?
In my Youth...Yes! Oh Dear here we go again...back to the distant past. Nevertheless in my Youth one’s parents were always right even when wrong (which was not very often).
Rights, as Barend states, it covers everything one wants and cannot achieve due to a majority opposition decision against. So what is more natural as to use this ready weapon in our social mores, humanitarian, sympathetic, over concern society conscience in gaining one’s way?
The Greens are past masters at Rights, and the Treaty advocates not far behind, both in demanding our MMP Politically restrained Masters whose very life style depends on pleasing everyone to remain in government, accede to their “Rights”.
The United Nations thrives for its very existence on “Rights”, framed as they are in the sanctified corridors of that white carbuncle of bureaucracy, which passes for World Government in New York.
As Barend point out so clearly “Rights” enter into our very existence, every claim no matter from what organisation demands the right to this, and that, for their people. It seems that the only people left out are those of us who are either too busy to care, too old to be concerned, and the rest who live in hope that their “Rights” might some day gain attention and recognition.
Oh Boy luckily for us “Dreams” so far, have not been issued with any “Rights” yet. Perhaps they have to be taxed first!
Great article Barend, Would have been interested on any comments from say Thomas Paine, or Edmund Burke; pity they are gone. Or are they!!!
Brian

Anonymous said...

I take the view that "rights" should be more correctly termed "privileges". Privileges that we have gained from living in a civilised society.

If people recognise them as privileges then, perhaps, they will be valued and it will be better understood that the only thing that will preserve them is maintaining society's standards of fairness and justice. And there is not a lot of that around the world at the moment.

A woman living under Isis has no rights, no privileges and no access to justice.

Geoffrey John Bourke said...

Irrespective of some lovely words in one of the USA's founding documents (" ... inalienable right to life, liberty and the pursuit of happiness ... "). ('Inalienable' - is something which CANNOT be taken away for ANY reason) This from a country which has ALWAYS alienated the first two (death sentence, and gaol) whenever it felt it appropriate to so do.
The ONLY rights anyone has are those granted by the society in which they live.

Geoffrey John Bourke said...

Also
1. Every 'right' infers a corresponding 'obligation'
2. Freedom of Speech does NOT give the right to shout "FIRE" in a crowded theatre

Barend Vlaardingerbroek said...

........... UNLESS, Geoffrey, there IS a fire!
Even more interesting is when the alarm-raiser sincerely believes there to be a fire starting even though there isn't.

Anonymous said...

Prisoners have all been convicted and found in the eyes of the law to be guilty of a crime worthy of the penalty of a term of imprisonment. During that time many misguided individuals expound on their rights to an unbelievable range of benefits most would have assumed would have been extinguished, at least by the time of sentencing. No. Not at all. Our mechanisms to apply penalty have been so eroded that the benefits of conviction far outweigh any disadvantage. End result. Even the most poorly parented or uneducated amongst them would identify the facts. The benefits of breaches include rewards most unfamiliar to those who keep their noses to the grindstone and pay the toll of life.
SOLUTION is so basic you'd think the most dim witted politician would have tripped over it by now. Convicts have a right to Food, Water and Shelter for the duration of their sentence. NO MORE! No harm in dreaming. B