By guest blogger, on 2 February 2012
Claire Lougarre, UCL Laws PhD candidate, reports on ‘The Triumph of Human Rights: Dream or Nightmare?’, a UCL Lunch Hour Lecture held on 26 January. The talk was presented by Colm O’Cinneide (Reader, UCL Laws) and chaired by Michael Freeman (Professor, UCL Laws).
In 1945, the United Nations decided to provide a high level of protection to certain rights that it considered fundamental to human dignity, in response to the atrocities committed during the Second World War. This marked the start of human rights law.
This notion has since been stretched by academics, judges and the civil society to give rise to a greater protection of more and more human rights.
Colm O’Cinneide, Reader in Law with a considerable expertise in human rights, therefore, decided in his lecture to question whether the notion of human rights had been interpreted too extensively from its initial purpose.
And what perfect timing this was as, the previous day, David Cameron addressed in his speech to the Council of Europe the merits of human rights law, while criticising its extensive interpretation by the European Court of Human Rights.
The worldwide progress of human rights law is undeniable: it has spread among academia, NGOs, lawyers, and even among states that were initially opposed to its discourse. More recognition has also been provided to human rights over the past decades, thanks to a growing number of international, regional, but also national, human rights instruments.
At the same time, human rights law has also been interpreted more widely, leading to what certain call ‘an inflation of rights’. This controversy has thus led to the creation of two schools: the minimalist and the maximalist approaches. What do they argue for and what dangers do they both represent?
The maximalist approach
If human rights are traditionally associated with the civil and political sphere, the maximalist approach views them as also engaging with economic and social issues. This approach therefore recognises the right to health, food, housing etc. as being inherently linked to human dignity and, therefore, constituting human rights.
The maximalist approach is reflected in different systems of human rights protection (United Nations, regional systems) as well as in the constitutions of states such as Brazil and South Africa.
This account, however, represents several risks that Colm O’Cinneide listed to the audience. Firstly, the notion of human rights can, in this context, be abused to serve political interests.
Secondly, this approach goes against the philosophical belief that human rights should be narrowly defined, in order to justify the intervention in another state’s affairs when fundamental entitlements are violated.
Thirdly, this may lead to a ‘dilution of rights’, threatening human rights with the loss of their legal substance. However, these concerns, even though legitimate, do not threaten human rights law to the same extent that the minimalist approach does.
The minimalist approach
The minimalist approach views human rights as a minimum core of fundamental and negative liberties that aim to protect the individual against the state. In this context, human rights are thus perceived as engaging with the civil and political sphere only (right to a fair trial, freedom from torture, freedom of speech etc.).
This account captures the position of different states such as the US or the UK (in the design of the Human Rights Act 1998 and through the recent criticisms against the European Court of Human Rights for instance).
However, the minimalist approach also reflects some risks, identified during the lecture.
Firstly, it is ‘backwards-facing’. It responds to human rights issues that occurred in the past but does not address issues generated by our modern societies, nor take into account the immense progress of human rights law discussed above.
Secondly, it does not cover certain issues however essential to human dignity (health, education, housing, water, food etc.). Thirdly, it pictures individuals as persons independent from the state, which does not catch the complexity of how societies work.
At the end of his highly engaging lecture, Colm O’Cinneide expressed his legitimate concern that a minimalist approach was an ‘artificial security’, arguing for the need to embrace a maximalist account of human rights law.