By Kirsty OUP-UK
In the latest of my monthly Very Short Introductions columns, I have been speaking to Andrew Clapham, author of Human Rights: A Very Short Introduction. Andrew is Director of the Geneva Academy of International Humanitarian Law and Human Rights, and Professor of Public International Law at the Graduate Institute of International Studies, Geneva. He has also been a Representative of Amnesty International to the UN in New York, and has written several books on human rights for OUP.
OUP: What has caused the recent backlash in Britain against ‘human rights culture’ and the Human Rights Act?
Andrew Clapham: There are probably multiple factors at work against the Human Rights Act. First, the press have seized on stories of the police or prison authorities making lenient decisions and then blaming the human rights act when challenged. These stories, such as the man asking for pornography in prison, then become part of folklore. Second the Human Rights Act is also being blamed for the presence of dangerous people in the UK, people against whom there is not enough evidence to charge and prosecute them, and yet, they cannot be sent back to their country of nationality because there is a substantial risk that they might be tortured. This is indeed a tricky problem, but it exists even in the absence of a Human Rights Act. Human rights are set up as part of the problem. In fact, solutions can be found without violating human rights. Third, there is a tendency to equate human rights with European integration, foreign ideas and the United Nations. It is sometimes expressed that we have to come to this or that human rights decision because of Europe. This is a way of avoiding a proper debate but tends to turn people off human rights in ways which do not happen elsewhere where constitutional rights are seen as part of a national heritage. Having said all this I would not overemphasize the importance of any ‘backlash’, for the most part human rights are becoming more entrenched in the UK than ever before and are becoming seen as important checks on the power of the government.
OUP: Is the Human Rights Charter a license for ‘anything goes’?
Clapham: All human rights charters and declarations contain limitations on the enjoyment of rights. They provide the vocabulary to make the claim, but they also supply the arguments for denying the validity of the claim. A Charter may contain a right to freedom of expression, but it will also contain the limitations on that right and explain when it can be limited to protect the rights and reputations of others, or even the security of the nation. To the extent that human rights are associated with progressive causes such as women’s rights and freedom from discrimination on grounds of race or sexuality some decisions based on human rights charters may indeed suggest a more permissive society with regards to sex education, same-sex relationships and so on. The point is that restrictions on freedom have to be justified as necessary.
OUP: In the light of the absolute prohibition of torture, which came into effect in the 1980s, how does one define the threshold between coercive interrogation and torture?
Clapham: It is a question of suffering. This is in a sense a subjective test. No one should be subjected to torture or any form of inhuman or degrading treatment or punishment. The question suggests that coercion is acceptable, but coercion implies that the will of the suspect is being broken or that physical force is being used. Human rights law states that everyone is innocent until proven guilty. It is up to the police and prosecutors to gather evidence in ways that do not cause such suffering.
OUP: If you could draw attention to one human rights issue today, what would it be?
Clapham: The fact that everyone wants to separate out one or two issues. The importance of the contemporary human rights message is that the right to food should be given attention in the same way that we focus on torture. The history of human rights is riddled with attempts to denigrate some rights claims as less important.
OUP: Once people have read your Human Rights: A Very Short Introduction, can you recommend five other books for further reading?
Clapham: I give several recommendations for further reading at the end of the VSI. If I have to select five they might be:
1. Conor Gearty’s Hamlyn Lectures: Can Human Rights Survive? (Cambridge:
Cambridge University Press, 2006).
2. Paul Lauren’s The Evolution of International Human Rights: Visions Seen, 2nd edn. (Philadelphia: University of Pennsylvania Press, 2003)
3. Iain Guest’s Behind the Disappearances: Argentina’s Dirty War Against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990)
4. Kenneth Roth and Minky Worden (eds.), Torture: Does It Make Us Safer? Is It Ever OK? (New York: The New Press, 2005)
5. Philippe Sands’s Lawless World: The Making and Breaking of Global Rules, updated version (London: Allen Lane, 2006).
Human Rights: A Very Short Introduction has a companion website here.