Monday, October 11, 2004

Core Human Rights (III)

I see that Dave agrees with me that freedom from discrimination is not a core human right (see earlier posts here and on No Right turn. My position is based on a specific view of core (or basic) human rights as the sort of thing we would like to see entrenched in a Bill of Rights rather than as ordinary legislation. They represent the boundary that separates, not the compassionate from the unfeeling or the social democrat from the neoliberal society but the acceptable from the unacceptable, the free from the totalitarian, the marginally civilised from the totally barbarous.

These rights are universal and, in practice, laissez faire. In granting them the state merely undertakes not to actively deprive its citizens of those rights or to allow others to do so. There is no undertaking that citizen's will be able to exercise these rights nor promise to facilitate them. The right to life does not, for example, confer immortality or even a promise of free medical care. Nor does the right to work guarantee a job.

Discrimination may of course be a breach of basic human rights if, for example, the state makes it unlawful for a negro to live in a certain suburb (as happened under apartheid). Similarly if a group of vigilantes were permitted to pressure the landlords in a suburb not to rent to negroes we might argue that this is also a breach of the same basic human right. If, however, no pressure is put on anyone but there happens to be a popular prejudice against letting to negroes then the net effect may be much the same. The state could prevent this by passing a law similar to the NZ Human Rights (or Race Relations) Act which makes it illegal for landlords to discriminate on the basis of race. It is not, however, immediately obvious that the state should pass such a statute or exactly what form that statute should take. If the state were to pass such a law it needs to consider

(1) whether a general prejudice which significantly impairs a negroes ability to obtain housing (and choose where they live), in fact, exists.

(2) whether the legislation proposed will overcome this problem

(3) whether an alternative policy would be more effective.

Failure to consider these points could mean the state was in breach of Article 29(2) of the Universal Declaration of Human Rights by unnecessarily restricting the landlord's exercise of property rights. Given this complexity it would be harsh to argue that a state was breaching basic human rights merely because they failed to pass such an act.

We can also argue that the right to join another person in a relationship and to formalise that relationship is a fundamental human right. Certainly it was a serious breach of human rights when the old NZ law imprisoned same-sex male couples for exercising this right (or just having casual sex) but that law is now repealed. Under current NZ law only different sex couples may be legally married but any couple may consider hemselves married, call their union a marriage, associate with friends who recognise them as married, join a church which recognises and blesses ther union as a marriage and sign a contract agreeing that their relationship is subject to the provisions of the marriage act. The maximum difference any change to the law can make (and the CUB doesn't go that far) is to have the law formally recognise their marriage (many opponents of gay marriages still won't).

The present law does discriminate against same sex couples, if only because of the greater trouble they need to go to to have their union recognised, but I don't believe it constitutes a "Basic Human Right". The Race Relations and Human Rights Act are desirable if not essential legislation (at least in NZ today) but they are less fundamental than the Bill of Rights. The CUB is also desirable, "flagpole" legislation and, if passed will place New Zealand in the forefront of liberal democracies. Should we allow fundamental breaches of Human Rights by returning Ahmed Zaoui to torture or death in Algeria (or leaving it to Malaysia to provide him the protection that was our responsibility under the refugee convention) we attack the foundation of human rights in a way 1000 CUBs will not redeem. Perhaps history will view this as an abberration of a mostly decent society but might we not equally justly be lumped in with the USA, Australia and the other victims of terrorist paranoia as part of the decade when the West forgot their values.


Blogger sagenz said...

you will have the pc police after you. N***o long ago stopped being acceptable parlance and black is being phased out. I believe "people of colour" is the most acceptable now.
"terrorist paranoia " Do you find the murder of nearly 3000 people paranoia. The west did not forget their values. Decisions made by well meaning people for the greater good do not consitute forgetting your values. Bringing democracy to 28m people this last weekend as a direct result of the 911 attack is not forgetting your values. dont fall in with the other peaceniks who miss the whole picture for the sake of a detail.

11 October 2004 at 9:43 PM  
Blogger Greyshade said...

I did not oppose the allied response to 911 in Afghanisan or NZ's participation in it. I cautiously applaud the advent of democracy to Afghanistan but will observe a little longer before clapping with both hands. I certainly do not suggest that either of events represent the "West forgetting its values". I was not even referring directly to the war on Iraq.
The core values of the West are respect for the human rights enumerated (inter al) in the Bill of Rights, the UN Universal Declaration of Human Rights and the Constitution of the USA. NZ's treatment of Ahmed Zaoui already breaches those rights (although this could be largely redeemed by granting him asylum now). The USA's treatment of prisoner's at Abu Ghraib and Guantamo and the provisions in the Patriot and other recent legislation allowing for detention without trial, deportation or extradition to any foreign country regardles of whether this will lead to torture or gross injustice, and revocation of US citizenship shows serious misunderstanding of or total contempt for those rights.

12 October 2004 at 11:02 AM  
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