Wednesday, October 29, 2003

Since my last post, Unlearned Hand has toned down his initially rather visceral attack on my view that human rights are intrinsic, and shouldn't be granted on the basis of whether we happen to like people or not. In fact, to an extent we now converge: we both agree that the situation in Guantanomo Bay can be criticised in terms of the language of rights. Having conceded that point, however, Unlearned Hand makes the following comment:

"Let's take a different line for argument's sake. Let's say you and I think there is an intrinsic right to subsistence. Does that mean you or I can walk into a courtroom and demand the government feed us? It does not, because a claim that 'we all have an intrinsic right not to starve to death' is not currently legally cognizable. Certainly we could work to change that. But we at least need to recognize the current legal regime for what it is ... So where does that leave us? The way I see it, my South African colleague is saying that the Gitmo prisoners have an "intrinsic moral right" to this or that procedural protection, and my response is maybe, maybe not, but either way they don't have a legal right to it."

The point that Unlearned Hand is, I think, trying to make is that I'm entitled to say that the Guantanomo Bay detainees have (moral) rights, that should be crystallised into legal rights, but ultimately this is rather speculative and contentious, and similar to claiming that everyone should enjoy a right to food under US law.

Now the right to food does enjoy some protection under international law (in the form of the International Covenant on Economic, Social and Cultural Rights) and under the South African Constitution. But I accept Unlearned Hand's argument that in almost all jurisdictions requesting food from a court, as a matter of right, would not be a legally cognisable claim.

The problem with Unlearned Hand's analogy, however, is that the rights in issue in Guantanomo Bay -- rights such as the right to be presumed innocent, not to be arbitrarily detained, and to be tried within a reasonable time -- enjoy far wider protection in domestic legal systems than the right to food, and are therefore far more well-established and well-defined. In fact, I struggle off-hand to think of a single liberal democracy that does not extend these rights to its citizens. And that, of course, reflects a shared moral conviction that procedural rights such as these are among the most fundamental tenets of decent government, and are owed to individuals as matters of intrinsic right.

Prior to 9/11 most human rights lawyers would have been astounded if they'd been told that one of the world's leading democracies would shortly abandon procedural guarantees that have been centuries in the making. That the US now has -- and that articulate and intelligent people are willing to let it do so -- is what saddens me.


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