Human Rights Day: The legislation challenge

For Human Rights Day, Claire Methven O’Brien, Reader in Law in the School of Law, University of Dundee, and member of the Scottish Human Rights Commission and the Law Society’s Constitutional and Human Rights Subcommittee, examines the current challenges of human rights legislation and nations' efforts to implement increasingly complex requirements.

Each year, 10 December is international Human Rights Day, commemorating the adoption in 1948 of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly.

Drafted in the wake of World War II, human rights standards along with the UN Charter were intended as the foundation for a new world order, under which the dignity, fundamental rights and freedoms of all might be protected from our own governments and aggression by others.

Since 1948, the UDHR has been supplemented by more specific legal rules under a range of UN and regional human rights treaties, such as the European Convention on Human Rights and others adopted via the Council of Europe. In turn, many states have incorporated human rights into national law via ratification, constitutional amendment or, as in the UK, domestic enactments.

From international to national

It is easy to make the case that transforming states’ international human rights obligations into locally actionable standards is desirable, if not indeed essential.

Remedies for human rights abuses should be readily accessible, if worthwhile at all. International mechanisms are remote and lack the resources to handle complaints at volume, or take effective enforcement action, as the Strasbourg court’s chronic challenges demonstrate.

Yet, the horizon of human rights ideals now extends further than it did in 1948.

Over time, as courts and other mechanisms have elaborated their content, human rights requirements have become increasingly demanding.  As new threats emerge, for instance linked to modern slavery, digital technologies and climate change, standards continue to multiply in number and grow in complexity.

Given this, does it make sense in every case to transplant standards adopted at international level into national legal systems?

Complexity requires calibration

While routinely recommended by human rights bodies, giving direct effect to international human rights standards in national law is often more complicated than it may seem.

In the European Union, for example, a new law giving corporations enforceable human rights duties has attracted political controversy while its legal implications are only beginning to unfold.

In Scotland this year, there was understandable disappointment amongst stakeholders when the government put a long-standing commitment to incorporate additional human rights treaties on the back burner.  

Though opinion varies amongst stakeholders, there can be no doubt that this decision owed, at least in part, to the constraints of devolution.

Only recently did the Scottish Parliament circumvent the UK Supreme Court’s decision that its earlier attempt to incorporate the UN Children’s Rights Convention was unlawful. The risks of challenge to Scottish legislation incorporating not just one but four human rights treaties, along with new rights yet to be formalised at international level, can only be assessed as considerable.

In addition, the practical operability for public authorities of a Scotland Act-proof legislative incorporation scheme would have been open to question.

Striking a balance

Today in Scotland, even absolute human rights protections are breached and public authorities sometimes struggle to explain, let along meet, human rights and equality requirements. In a context where legal aid in criminal proceedings is jeopardised and social needs are pressing, the costs of adding new duties to the mix must be carefully calibrated against potential benefits.

‘Where, after all, do universal human rights begin? In small places, close to home.’ Eleanor Roosevelt’s words serve as a perennial reminder that human rights survive or fall with popular understanding, accessibility, legitimacy and support.

Sustaining that support in the long run requires, amongst others, pursuing statutory human rights protections, where real and meaningful gains can be secured. If for the time being they cannot, other channels for preventing and redressing abuses, and strengthening accountability, should be considered.

Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. She is a member of the Law Society of Scotland’s Constitutional and Human Rights Subcommittee. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the University of Dundee, the Scottish Human Rights Commission or any other organisation.