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The Human-Rights Challenge
Human rights are at once being wildly inflated and attacked as outdated.

Hu Jintao arrives in Denmark, June 14, 2012.

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Jacob Mchangama

It is trite to observe that the enjoyment of democracy and human rights is a distant hope for many people in the world. But human rights are threatened not only when they are systematically violated — as in, inter alia, China, Russia, and many states in the Middle East and Central Africa. Other developments threaten human rights not in politically backward societies but in liberal democracies. One is the continuous inflation of the concept of human rights, dissociating it from its core function of safeguarding freedom. At the same time, we are seeing the erosion of belief in these principles.

Since the 1960s, human rights have expanded beyond recognition with respect to both the number of human-rights instruments produced by international bodies and the scope of what some of these bodies would cover under the heading of human rights. This expansion has weakened, not strengthened, democracy, because human rights have been distorted into something often at odds with the tradition of liberty from which human rights emerged.

The website of the United Nations’ High Commissioner for Human Rights lists more than 90 human-rights instruments (some binding, others non-binding). U.N. member states are now discussing the adoption of a new convention on the rights of the elderly, and the Human Rights Council has adopted thematic mandates (so-called “special procedures”) dealing with topics such as “the promotion of a democratic and equitable international order” (sponsored by Cuba) and the “human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.”

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More than 30 human-rights-related conventions and protocols have been promulgated by the Council of Europe. The European Court of Human Rights (ECHR) has strayed from its mission of safeguarding basic rights, which serve as a bulwark against the reemergence of European totalitarianism, by giving itself the authority to identify new rights and obligations nowhere to be found in the European Convention on Human Rights, adopted  in 1950. For instance, it has determined that the right to property protects welfare benefits, turning the concept of private property on its head. This means that austerity measures currently being carried out across Europe may run afoul of human rights. In fact, this was the message to Portugal from the Council of Europe’s human-rights commissioner in May of this year. The EU Charter on Fundamental Rights, adopted in 2000, protects not only freedoms but also things such as “the right to free placement services” and a “high level of consumer protection.”

Recently the United Kingdom attempted to reform the ECHR. The international press and most human-rights organizations characterized this as crude pandering to Euroskepticism and an attack on human rights as such. And while British tabloids may have fostered this impression, the British attempt to reform the concept of human rights was a much-needed though unsuccessful initiative.

The United States has historically been a force against the inflation of human rights, insisting on keeping the definition of these rights wedded to liberty and the rule of law. But under the current administration this position is softening, and when the United States’ human-rights record was reviewed by the U.N. Human Rights Council, the administration cited a number of social assistance programs as fulfilling international human-rights obligations. Meanwhile, President Obama himself has avoided association with traditional human-rights defenders in the attempt to improve relations with authoritarian states alienated by the Bush “freedom agenda.”

If popular and political support for human rights is to be maintained, government and civil society need to safeguard the concept of human rights, especially given the obduracy of existing authoritarian regimes and the possible emergence of European governments whose political programs would be anything but liberal.

The human-rights overreach is one end of the spectrum. On the other end, there is a growing sense that human rights and democracy have become irrelevant or even an obstacle to the West as it face the challenges of the 21st century. This skepticism was captured in an op-ed last winter in the New York Times claiming that China’s political model is superior to liberal democracy, and praising the Chinese crackdown at Tiananmen Square while scolding the West for being “incapable of becoming less democratic even when its survival may depend upon such a shift.”

To a certain degree, liberal democracies have internalized this criticism. In 2009, Secretary of State Clinton openly downplayed the role of human rights in bilateral discussions with China, saying that jobs were important, too. When Chinese president Hu Jintao visited Denmark this June, peaceful protesters were arrested, a New York–based Chinese-language TV broadcaster was refused accreditation, and Tibetan flags were confiscated. When the Danish minister of trade was asked whether she brought up the issue of human rights in a meeting with her Chinese counterpart during the height of the Chen Guangcheng affair, she replied: “We discussed securing the right to energy, which is also part of human rights.” Such postures by Western governments are reminiscent of the approach toward human rights taken by the Soviet Union.

The U.S. has also softened its traditionally staunch defense of one of the rights that matter most, namely freedom of expression, in an attempt to forge better relationships with the states of the Organization of Islamic Cooperation (OIC). The EU and the U.S. have steadily lost influence on human-rights issues at the United Nations, whereas Russia and China have seen a marked increase in their ability to win support for resolutions that subvert human rights. Thus, if human rights stand in the way of decisive leadership and poison relationships with rising powers, why should developed countries hold on to such unpragmatic and outdated ideals?

Apart from the cynicism and immorality of abandoning the concept of inalienable rights central to the liberal democratic order, there are in fact solid utilitarian grounds for keeping faith in basic human rights. A recent World Bank study concluded that civil liberties “positively influence long-run economic growth.” Moreover, in the competition with BRIC (the economies of Brazil, Russia, India, and China), respecting basic rights may also give a competitive advantage. No one can doubt that China, having lifted 660 million people out of poverty in three decades, has taken impressive strides and that the Chinese enjoy more freedom than during the darkest days of Mao. But China’s freedom deficit vis-à-vis the West may well hold the country back. A 2010 study showed that 92 percent of Chinese doctoral students studying in the United States stay in the U.S. after completing their PhDs, more than those from any other country, including Asian democracies such as Japan, South Korea, and Taiwan. This suggests that to some Chinese, freedom may be as much an attraction as economic opportunity.

Moreover, many of the most outspoken Chinese dissidents in the U.S. are extremely well educated and have excelled in business and science. They would normally form part of their country’s elite rather than being exiled pariahs. But as things are, they have become prominent advocates of Western-style human rights and, through modern communications technology, are able to disseminate their views to more and more ordinary Chinese citizens. A superpower that exports not its tired, its poor, its huddled masses, but rather some of its best and brightest to its biggest rival and that makes them not only expatriates but exiles has created a significant disadvantage for itself in a globalized world. So not only do basic human rights have an intrinsic moral value, they also provide a comparative advantage. But this advantage is dependent on human rights’ being wedded to liberty and the rule of law rather than being applied to every imaginable grievance or socioeconomic problem.

— Jacob Mchangama is managing director of the Freedom Rights Project, director of legal affairs at the Danish think tank CEPOS, and external lecturer in international human-rights law at the University of Copenhagen.



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