Issue 32 April 2006 Editors Introduction
Introduction from the Editor
Making Human Rights Matter in Changing Times?
Introducing tougher anti-terror measures in the wake of the July 7 London bombings, the Prime Minister stated that the rules of the game are changing. One quoted example of this was that the government could seek to provide direction to the judiciary as to how to interpret the European Convention on Human Rights. Before the year was out, Lord Bingham, delivering his judgment as to whether evidence obtained through torture could be admissible as evidence against suspected terrorists, stated the following:
"It trivializes the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer ... The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention. The answer to the central question posed at the outset of this opinion is to be found not in a government policy, which may change, but in law."
Of course both the Prime Minister and Lord Bingham are right in their own ways. The rules of the game are indeed changing but the rules of law and respect for human rights endure and are still to be applied to the changing game. The rules of the game were changed in fact through the "war on terror" in the wake of September 11. 1bis has been used to justify in part such developments from the war on Iraq, Guantanamo, the construction of the Israeli Wallin the Occupied Palestinian Territories to the alleged use of Scottish airports for "extraordinary rendition" flights. Such unilateralist developments have challenged the fabric of the United Nations, its Charter and its human rights framework as developed over the past 60 years since World War 2.
In another sense the rules of the game had been changing even before September 11. Globalisation had increased the power of multinationals and weakened the sovereignty and capacity of nation states, particularly in the developing world, to determine their own affairs, including implementing their international human rights obligation towards their own citizens in terms of raising standards of health, education, etc. through developing their economies and enjoying the benefits of fair trade, access to markets, etc.
Yet we may now be witnessing the early indications of a response, of a diversity of attempts to apply the enduring principles of rule of law and respect for human rights to the changing conditions. The principles are being defended but the challenge, more than ever, is to find the ways and means to achieve their implementation. This can be seen within the UN itself.
The World Summit in New York last September affirmed the Kofi Annan report which proposed the three pillars of the UN for this new period and declared that "we will not enjoy development without security; we will not enjoy security without development, and we will not enjoy either without respect for human rights".
As part of the implementation of UN reform this March has seen the replacement of the partially discredited Human Rights Commission with a new and stronger Human Rights Council We reproduce the welcome given to this body by Louise Arbour, the UN High Commissioner for Human Rights. The positive features of the former Commission have been retained, including the role of the independent rapporteurs and of course the guiding principles and framework provided by the international human rights treaties. We demonstrate, through a contribution from my colleague, Rachael Berry, the practical relevance and topicality of such rapporteurs through the examples of current reports concerning Guantanamo, the impasse in the Israeli/Palestinian conflict as well as the progress towards clarifying and strengthening of human rights standards for business. Such reports demonstrate that human rights continue to be a compass towards finding solutions to contemporary problems in the world. Of course, human rights' being a compass is insufficient for the victims of human rights abuses whether in Darfur or elsewhere and the challenge remains finding the ways and means of implementing the human rights approach. We share with you a recent personal reflection of Mary Robinson, the former UN High Commissioner for Human Rights, with regard to the lack of progress in the WTO negotiations. Scotland can, and should of course, play its part in making human rights matter in these changing times. As well as the usual case digest from Scott Blair we provide an update on the progress of the Scottish Commissioner for Human Rights Bill as well as reproduce the press release from the Scottish Parliament on the occasion of a recent visit by an Iraqi human rights delegation. There is also no room for complacency about the place of human rights in Scotland as was illustrated by the Iraqi delegation which, during its visit to the Scottish Parliament and elsewhere in Scotland, expressed its concerns about a number of observations including the wish for the Commissioner to be established without delay so that Scotland could become a more positive influence internationally, the issue of separation of powers between the Lord Advocate and the Scottish Executive, the under-representation of women within the judiciary, the obvious plight of the homeless on the streets, the treatment of children of detained asylum seeking families and the apparent inaction relating to the alleged use of Scottish airports for "extraordinary rendition" . "To see ourselves as others see us" .... now who said that?