Chapter Eight: The Future Of The State

VIII. Human Rights In Governance

Human rights (sigh) are presumably a modern invention. Jeremy Bentham called them 'nonsense upon stilts'. The only right a human has is to be human, after all, as the only right an eel has is to be an eel. But humans are prickly, so that they have acquired (or invented) rights, and like it or not these rights are now a fixed part of the landscape. And oh boy but do they change things.

To be charitable, one could say that humans had to acquire rights in order to defend themselves against the State, which is non-human, and if left to its own devices allows rights only to itself. All human rights cases seem to be between individuals and the State, rather than between individuals. That immediately makes them a part of the globalized landscape, since you will not get very far suing the State from within itself. True, in common law jurisdictions there is the writ of mandamus (to force an administrative authority to fulfil its functions as laid down by law and regulation), but there are not too many successful prosecutions.

A Universal Declaration of Human Rights was incorporated in the foundation documents of the United Nations in 1948, and therefore all UN member states subscribe to its principles in theory. But in practice there is no formal mechanism for enforcing the Declaration, and no court exists to hear cases under the Declaration.

Europe has gone further. The Convention for the Protection of Human Rights and Fundamental Freedoms was adopted by the Council of Europe in 1950 and applies in all its member states, which includes all member states of the European Union and some others besides, notably Russia.

The European Court of Human Rights in Strasbourg was created to hear complaints under the Convention, and has acquired a high profile, especially since it was strengthened in 1998. Member states or individual citizens can bring cases to the Court; cases are always directed against one of the member states which are parties to the Convention.

The ECHR has been highly successful, if the size of its case load is any measure. The Court received 5,981 applications in 1998, its first full year of operation in its new form. By 2005, this number had risen to 38,000 – a 15% rise over 2004.

The ECHR is not the only such Court. In November 1969 member states of the Organization of the American States adopted the American Convention on Human Rights, which entered into force on July 18, 1978, when a member State deposited the 11th instrument of ratification.

25 American nations have now ratified or have adopted the Convention: Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile, Dominica, Ecuador, El Salvador, Granada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Suriname, Trinidad and Tobago, Uruguay and Venezuela. No prizes for noticing who is left out.

The Convention created two organs to promote the observance and protection of human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The first one was created in 1959 and entered into force in 1960 when the Council of the OAS approved its Statute and elected its first members. The Court’s first hearing was held in 1979; its base is in Costa Rica (a country which, interestingly, has no army).

It seems inevitable that the ECHR and the IACHR will be copied in other parts of the world. Eventually perhaps they will all merge, or perhaps a global jurisdiction will be created under the United Nations' Universal Declaration.

Both the ECHR and the IACHR operate in effect as courts of appeal from national courts. Although both of them can work at first instance, it is rare. Both courts and their parent organizations do everything possible to persuade national judiciaries to give impartial hearings to cases involving human rights, if only to avoid being swamped by applications.

The details of how human rights courts will evolve need not detain us. What is clear is that by 2050 there will be a global system of human rights courts, operating under a harmonied set of human rights principles, which will also apply to national courts. That's almost the case now, in Europe.

The corollary is of course that nation states will have lost any power over the definition and the enforcement of human rights, whatever those may eventually be defined to be.