How The Rule Of Law Is Actually Undermining Human Rights

from the pay-attention-to-the-exceptions dept

This is from a little while ago, but I just had a chance to listen to a fascinating and eye-opening lecture by Professor Conor Gearty at the London School of Economics (LSE posts many of their public lectures online as podcasts, some of which are really excellent). The lecture was officially entitled: Human Rights, Security and the Rule of Law after Snowden. It caught my attention for a variety of reasons, including the inclusion of Snowden, but the bigger point of the lecture actually had very little to do with Snowden. It's really about the gradual and systematic undermining of human rights by human rights laws and regulations.

Gearty's point is a powerful one: lots of people quite reasonably push for human rights laws and regulations -- but what gets left ignored are how those laws are systematically being used to actually deprive people of human rights. He focuses on UK law (for obvious reasons), but we've seen similar patterns elsewhere. The idea is that "the rule of law" is being used to chip away at actual human rights, often by setting up either exceptions to human rights law or by setting up laws that fundamentally violate human rights but which paper it over by having a process for (often secret) "review." So, in the US, for example, think of the FISA law, which set up the FISA court, which has rubber stamped all sorts of questionable invasions of privacy. Gearty points to similar situations in the UK, noting that when challenged, these are all deemed to be perfectly "consistent with human rights" because the officials who do it are "complying with the law."

In fact, this kind of thing goes back to the point that John Oliver raised soon after the Snowden disclosures. He noted that the disturbing thing wasn't that the surveillance broke the law, but that it didn't break the law. In some ways, there are also parallels between this and things like the requirement for "privacy policies" for websites and apps. The laws basically require the policy, but not much actual privacy. And thus, sites actually have incentives to write a policy that says they won't respect your privacy, because that's much harder to violate. Thus, when they do violate your privacy they're still "within the law," even if the privacy violations are themselves questionable.

The larger point here is really about this concept of "the rule of law" and how it can be used to actually undermine what's right. You create "rules" that can be followed, but which allow for things that, by any common sense analysis, are abusive and troublesome, but you insist that they're fine because they're "lawful."

At the end, Gearty points out that he's quite fearful that this kind of "rule of law" attack on human rights is being extended in a manner to target and attack the poor as well. He gave this speech a few weeks prior to the events in Ferguson, Missouri that we've been discussing recently, but it's not hard to see the parallels there. The "rule of law" has been used in Ferguson quite a bit over the past couple weeks to justify actions that seem horrific, from killing an unarmed teenager, to teargassing protesters, to wiping out parts of the First Amendment to bringing in militarized police. And the defenders of these programs all point to the "rule of law" as justification.

Increasingly, however, it seems like "the rule of law" is being used as a dangerous and misleading shield for some very corrupt behavior.

Filed Under: conor gearty, human rights, rule of law, security