Human Rights and Civil Liberties in and . Some Comparative Elements.
The background: .
In the identities of both nations, les Droits de l’Homme et du Citoyen and the promotion of civil liberties, and of Liberty in general have played a central role , historically. The difference between Human Rights and Civil Liberties needs to be drawn, not in legal terms, but in political ones. uses both expressions, Human rights having a broader and more philosophical acception, tinged with ethical considerations, whereas civil liberties are defined more specifically, and more pragmatically. The British equivalent of the Ligue des Droits de l’Homme et du Citoyen is Liberty, formerly the National Council of Civil Liberties. It should come as no surprise that should mix ethical considerations with political ones, since the ethical construction of what is generally considered in as political issues is not infrequent in the . This issue is a controversial one in , since human rights are a contentious area where Catholic intellectuals have established a base camp, and justify a public commitment in the name of a religious faith, a stance which is in violation of French secularism . The gradual conquest of civil liberties is part and parcel of the mythical British identity. The Habeas Corpus features prominently among the founding myths of the British nation, and the gradualism which is supposed to have prevailed in the conquest of essential freedoms illustrates the good sense of the British a opposed to Gallic impatience. Likewise, in the semi official fairy tales, the role of the Monarchy in “granting” freedoms and rights is presented as evidence of its ability to lead the nation and to steer it in the right direction. This is largely mythical, but, as Sorel put it at the turn of the century , when people believe in them, myths serve a purpose, and have a real function. For all the criticism colonial powers deserve for their behaviour away from home, from the Letter on Indian Education onwards, did try to incorporate the promotion of human rights in their imperial agenda, the abolition of the Sati in being a case in point. Whether this was a purely cosmetic exercise, as anti colonial , anti imperialist, and communist movements and thinkers would have it, or whether there was a real commitment is a good subject for debate and research. The process of decolonization did incorporate the promotion of human rights, since independence was denied to racist white minorities, such as Ian Smith’s . Current policy, from Robin Cook onwards is supposed to include an “ethical dimension”, such as the promotion of human rights. Finally, ’s major geopolitical commitments, from the Second World War to the Cold War, to its support for the UN, and its controversial association with the in Irak have always been justified in the name of Human Rights. Even the First World War, a particularly squalid affair, which was subsequently blamed on the contention of imperial powers for markets, and seen as evidence of the unacceptable face of capitalism, was justified by the need to contain a brutal, aggressive, authoritarian Kaiser who denied his subjects, and the conquered nations, essential freedoms. Human rights, and the discourse on human rights, are therefore not a side issue when it comes to British identity.
In terms of home politics, HR have been less controversial than they ever were in . This naturally implies that the relationship with is not considered as “home politics”, but as part of foreign affairs, since repeatedly deviated from the “rule of law” over there, an issue which had little impact on British politics in the XXth century. Parties purporting to ignore human rights, or condoning violations of HR abroad, such as the Communist Party or the British Union of Fascists, remained in a minority. Compared to that of continental Europe, the British political and social scene remained extremely peaceful and law abiding throughout the century, when gross violations of HR were seen as a matter for concern abroad. Militants, motivated by ethical or political considerations, invested their energy and emotions in the fight against nuclear weapons – a non starter in French politics- but not so much in HR. NGOs specializing in the defence of HR remained relatively small. passed innovative legislation and designed institutions to reduce relatively minor infringements upon human rights, such as racial discrimination, and the unequal treatment of women in the work-place, but such issues, for all their importance, are not to be compared to torture, murder, imprisonment without trial and the denial of freedom of speech. Therefore, the fact , which appeared in the 1990’s, that a significant proportion of the cases, in the region of 50%, brought before the European Court of Justice originated from Britain came as a shock. This certainly proved either that the British public had a taste for litigation, or that there were indeed a number of loopholes in British law, which the New Labour government attempted to address with the Human Rights Act of 1998. The issue of Human Rights has gained a new prominence in with the growing confrontation with radical Islam. This process started in the very late 1980’s, when the Rushdie affair brought home to the British the utter disregard of fundamentalists for freedom of speech, human life, the rule of law, all essential principles of even the narrowest definition of HR. Subsequent events, the attacks of 9/11 and 7/5, convinced the authorities of the need to protect not just the security of the country, but also HR, which constitute precisely the core target of fundamentalists. It is not just a matter of combining security and human rights, of avoiding excesses and violations of rights in the struggle against terrorism, but of protecting the core of British identity, individual freedom, in the most efficient manner. The issues at stake concern such subjects as gender equality, freedom of speech, the rights of young people to choose their own sexual partners without interference of their families i.e. in many cases, issues straddling the private and the public sphere. The debate bears some relationship with discussions during the Second World War, when some stressed the political nature of the “war against Nazism”, while others saw the issue in traditional geopolitical terms, Germany Vs Britain .
The background: .
In France, the sole expression “Droits de l’Homme “ is used by the authors of constitutions, politicians, and NGOs, and no specific mention is made of civil liberties. It is invested with a directly political dimension , which is obvious in the republican adjunct “et du citoyen”. does not stress “civil liberties” as opposed to political and social rights. It certainly includes them within HR, but considers human rights as a whole, that cannot be dissociated. Rights are intimately linked to citizenship, which raises the problem of their universal nature, given the link which was gradually established between citizenship and nationality. Are the citizens of other nations to be invited to promote civil rights in their own countries, and how can the universal nature of human rights, which is an essential component of the notion, be asserted in this context. ? In the past, this universalism was one of the motive forces behind French expansionism. Napoleon 1st brought constitutions to the nations it “ liberated from the yoke of monarchy”, and French colonization was justified by the urge to spread modern democratic values, at a time when Britain was happy constructing a purely commercial empire, long before J.B.Macaulay came along, and several decades before the White Man’s Burden was invented by Rudyard Kipling. ’s use of human rights as a marker of its identity predates ’s. The two countries also differ as far as the process leading to HR is concerned. Whereas construes this as a continuum, which historians have largely exposed as fictitious, presents this process as a series of “ruptures”, an untranslatable term, - clean breaks ?- which even contemporary politicians use carelessly, and which might well have been overplayed. Civil liberties, the right to come and go , change jobs, move about freely within the country, were obtained, then withdrawn, and remained key issues during the 1830 and 1848 upheavals. Civil liberties, let alone civic, political ones and social ones, where denied until the demise of the 2nd Empire, in 1871, since working class people did not have the right to move freely within the country, or change employment, and had to carry about a “livret ouvrier” , signed by their employer, certifying the nature of their employment and explaining their whereabouts . Clearly, social rights, civil rights and political rights were jointly at stake, until the advent of the 3rd Republic in 1871.From the French Revolution onwards, the struggle for human rights was therefore a difficult one, with advances and periods of stagnation, as well as contradictions, within the country and outside it. The link between human rights and citizenship is essential. Citizenship, at this juncture, can certainly be defined as TH Marshall used to construe it, ie including the civil dimension, but also the political one and, most importantly for France, the social one. This is probably one of the most significant differences with , which will certainly not include social rights within civil rights. Needless to say, functions within a unitary framework, and the ideas put forward by multiculturalist thinkers of the previous decades, such as Bhikhu Parekh and Kimlicka, have never attracted a significant following. The idea of “group rights”, the notion that specific communities are entitled to the promotion of their mores is not applicable. Citizens are deemed equal, cultural differences belong to the private sphere, and deserve neither public scrutiny, provided they do not break the law, nor support. Universal human rights, conversely, are not culture specific, and transcend differences.
The status of human rights within French political debates started changing in the I960’s. For a start, the Algerian war of independence was a real trauma. Numerous violations of human rights were committed by the Algerian nationalists and by white OAS terrorists towards civilian populations, both white and Algerian, and the French armed forces behaved in a very controversial way, and occasionally resorted to indiscriminate bombings and even torture. Interestingly, in spite of the international consensus on HR, and of official commitments, neither side is repentent. The name of Franz Fanon, who condoned and even advocated the use of terrorist violence against white civilian populations as a means of reconstructing the identity of the colonized is revered by Black and North African nationalist currents, and the upholders of independence for Martinique are even considering naming the airport built by the French Republic in Fort de France after him. General Aussarresse, one of the men in charge in the repression of the Algerian uprising, rekindled recently the smouldering coals by publishing a book justifying the use of torture as a means of extracting information from prisoners. HR are obviously most at risk in periods of tension and war, and the oxymoronic objective of “civilizing warfare” seems to be a rather fuzzy one. Can governments seriously talk about human rights when they stockpile weapons of mass destruction ? Conversely can you seriously withstand the pressure of the enemies of HR without guaranteeing your citizens’ security ?
In any case, in the 1960’s, opposition to the Algerian war, and to the methods used by the French Armed Forces gave old NGOs such as the Ligue des Droits de l’Homme a new impetus in France and a new generation of militants was born, giving HR a new prominence.
From the late 1970’s to the late’ 1980’s , while soviet communism was slowly imploding, all left wing and working class parties had difficulty coming to terms with the collapse of the industrial social model, known as “fordism”, and with the collective values and policies it had generated. Human Rights, from the late 1970’s onwards, came to play a central part both in conservative discourses and in left wing ones. For Conservatives, they constituted a major argument in their final push against the Soviet Union, and Communism in a more general sense. For the Left, they became a non negotiable hard core, inherited from the French Revolution. Disillusionned militants left traditional or radical politics, only to join HR or anti racist NGOs. The “Nouveaux philosophes” as the media called them in the late 1970’s, such as Bernard Henry Levy and Andre Gluksman, where straddling the border between left and right, or sitting on the fence, and inspired both camps. This movement also spawned the humanitarian NGO’s, which devote their efforts to relieving poverty, disease, squalor, ignorance and lack of employment in the Third world, such as the well known French Doctors, MSF, MDM, and icons such as the flamboyant Bernard Kouchner or the no-less iconoclastic Pascal Bruckner.
Like , was forced to take a fresh look at HR in the context of the Muslim fundamentalist offensive. In the 1990’s this took the form of resisting the imposition of Muslim religious codes of behaviour on female schoolchildren, in terms of access to certain classes and the wearing of the veil, of providing the Algerian government with technical support in their war against Muslim terrorists, of granting asylum to refugees from Algeria.
In the current context of Europeanization but also of globalization and global migrations, the universalism which is at the core of the notion of “HR” raises very practical issues. If the values incorporated in Human Rights are truly universal and non negotiable, they must certainly apply not just to European citizens, but also to migrant populations living in Europe, and they are part and parcel of the European model, which maintains an ambiguous relationship with the American model. Free speech, including the right to criticize or deride all religious beliefs, the need to eradicate anti semitism as well as all forms of racism, the elimination of discrimination towards women or on the basis of sexual orientation are highly controversial policies among some migrant populations, who construe them as evidence of decadence. They are essential components of HR, and of the identity shared by most European countries, with, perhaps, the exception of some of the new entrants, such as . In terms of foreign policy, HR also play a considerable part. The United Nations did incorporate, from the start, the principles put forward by the victors of World War II. The Universal declaration of Human Rights was certainly accepted by all member states, and HR are therefore supposed to transcend their national origin. They have become part of the common “human heritage”, as becomes a universal principle. However, the degree of enthusiasm of governments and populations in upholding HR varies considerably, double standards apply, and HR have difficulty surviving the pressure of national interest or nationalistic emotions. Europeans, and Americans see their geopolitical interests as intimately linked to HR, which are seen as new version of the White Man’s Burden, both in Europe or America, and else where. In the framework set for the “civilization clash”, human rights feature prominently in the “Western” or rather “Northern” arsenal, even though the criticism of that very same arsenal is made in their name. This is the view promoted by the followers of Chomsky, the “altermondialistes”, but also by the proponents of other models, such as and Islamic regimes.
and have evolved legislation, but also institutions designed to implement human rights. This is obviously the primary function of the judiciary, as a whole. It is supposed to be the justification of respect for the “rule of law”, “l’état de droit”, unless one adopts a purely deferential stance and respects authority per se, irrespective of its legitimacy. This an area where and differ to some extent, although much less so than Scandinavia and Southern Europe. However, both countries have also created specific institutions in order to eliminate practices which, on the domestic scene were contrary to HR.
In this respect, the policies of the two countries clearly converge. created a Race Relations Board in 1968 and turned it into the Commission for Racial Equality in 1976 . In 2006, the Equality Act was passed, creating a Commission of Equality and Human Rights, whose remit encompasses that of three existing bodies: the CRE, dealing with racial discrimination, the Disability Rights Commission, and the Equal Opportunities Commission, created in in order to deal with gender inequality. The new Commission is chaired by Trevor Phillips, who recently opposed the excesses of multiculturalist policies in the , which earned him a lot of flak from holier-than-thou, politically correct liberals, such as Ken Livingstone. The new CEHR takes over all the responsibilities of the existing bodies, but reconstructs previous anti discriminatory practices, which were sectional, within a more global context, that of Human Rights: “It will also promote awareness and understanding of human rights and encourage good practice by public authorities in meeting their Human Rights Act obligations New powers to take human rights cases will give a new arrow to the bow of many minorities who suffer discrimination” This illustrates quite well the hesitations of the current government, torn between the compulsory reference to past multicultural policies, and the need for a more universalist approach.
British policies of the 1970’s and 1980’s, and the creation an apparatus designed to combat discrimination, help victims prosecute offenders, and monitor progress, at local level as well as nationally, was observed with interest, but not emulated by France until the late 1990’s. Criticisms of the “race relations industry” abounded in , and the mistakes , and sometimes the dogmatism of local race relations officers, were repeatedly highlighted by the conservative press. This did not encourage to follow the same path, especially since the idea that “sectional interests” should be defended seemed to lead to communitarianism. Besides, has a healthy distaste for hypocritical, polite speech and considered political correctness as an American artefact. Tampering with the language in the name of race relations was beyond the pale. Gender blind people should be pitied, not imitated. The change from “droits de l’homme” to gender blind “droits humains” is resisted by the LDH on universalist grounds. The string of official reports which produced on race relations and the attitude of the police force, from Scarman in 1981 to Macpherson in , and the real efforts made in the training of the police force had no equivalent in .
However, specialized institutions were created, first to monitor infringements on human rights. The Commission created in 1947 under René Cassin in order to draft the Universal Declaration of Human Rights, subsequently adopted by the UNO, was revived in 1984 under François Mitterrand, and was chaired by Nicole Questiaux, a high profile socialist politician, and a lawyer. Race relations were becoming a prominent issue in political debates, and a party suspected of giving shortshrift to HR, and led by a former officer of the Algerian war, was gaining ground among voters. The Commission Nationale Consultative des Droits de l’Homme is under the responsibility of the Prime Minister. It helps draft legislation, advises government, and monitors infringements on human rights . Its annual reports are a good barometer of the state of in this respect.
In 1999 the Groupe d’Etude des Discriminations (GED) was formed. Whereas the CCNDH included high ranking magistrates, experts and representatives of Trade Unions, the GED was mostly made up of experts. Its original function consisted mostly in researching the issue. This was quickly enlarged, and the GED was turned into a GELD in October 2000, L standing for “lutte contre” les discriminations. Form a monitoring agency, it mutated into an institution designed for social engineering. The remit of the GELD was enlarged in December 2004 , when the Haute Autorité de Lutte contre les Discriminations et pour l’Egalité” was formed, under Jacques Chirac . This institution is also chaired by a high profile character, Louis Schweitzer, the former CEO of the publicly owned Renault company. The Halde advises the government, Parliament, and public bodies, but goes much further than this. It assesses the merits of cases of discrimination and, if it deems the claim legitimate, helps the victims prosecute the offenders, and provides technical help. It also publicizes what it considers to be good practices. As we will see, the internal contradictions of run deep within the HALDE itself, which adopts contradictory stances. has therefore created specialized agencies, mostly at national level, on the British model. Under Jean Pierre Chevènement, each Préfecture was required to open a local Comité d’Accès à la Citoyennneté, or CODAC, which investigated complaints and ran an anonymous telephone hot line, but this never functioned very efficiently, perhaps because the government did not really encourage the participation of uncontrollable NGOs and individuals. As a whole, however, institutional convergence is now a reality.
In terms of themes, ie the issues which, in both countries, are considered as problematic from the point of view of HR, the situation is much more complex. Some issues feature prominently in official discourse, or in that of NGOs, in both countries. However, their treatment sometimes differs. Other issues are prominent in one country, but not in the other.
Among the second category one can probably list social rights, which do not seem to be considered as relevant from the point of view of HR in the . They feature prominently among the concerns of the French LDH, which opposed the ill fated Bolkestein Directive in 2006, - the celebrated Polish plumber case- and campaigned against it. Leaving aside the cultural and political differences between Britain and France concerning the merits of liberalism and liberal policies in the UE, the difference of emphasis is clear, not just between NGOs but also institutions. Equality is an official goal as far as is concerned, and is on a par with citizenship. It has a social content, and is therefore primarily relevant to what used to be called “class” in the . When British NGO Liberty mentions equality, what it is mostly concerned with is the treatment of homosexuals and transsexuals. The Equality Act passed in 2006, which lays the legal framework for the Commission for Equality and Human Rights, is concerned with discrimination on the grounds of religion, sexual orientation, sex discrimination, disability discrimination, and race discrimination. This is politically understandable, and follows the fiasco of the bill on religious and racial hatred, when government attempted to pass blanket legislation covering jointly incitement to religious and racial hatred . Nevertheless, social and economic equality is ignored. Basic social rights, ie a fair day’s wage for a fair day’s work, balanced industrial relations and a commitment to keep Beveridge’s Five Giants at bay do not seem to be within the ambit of HR in Britain. Economic and social issues should be left to market forces, or possibly Parliament, but are irrelevant to HR.
Even though both countries refer to citizenship, the meaning of the term is again slightly different. For the French, the terms implies the ability of all citizens, including those whose ancestors were not French, to partake in the life of the nation, and participate fully in economic and political activities. What we are talking about here is mostly called integration. This bears a strong relationship with another term “la République”, which is often misinterpreted outside , and construed as a pure reassertion of nationalism. “To defend “la république” does not in fact imply protecting from the onslaught of the “féroces soldats” mentioned in la Marseillaise, although this has indeed proved necessary at times. What this has meant since World War II, is purely that the struggle between democracy and tyranny is an internal problem for . There is a case for saying that WWII was a civil war in this country, as Paxton and other American and British historians would have it. The defeated party vanished into thin air, thanks to the conjuring tricks performed in the late 1940’s, but deep opposition to or indifference to HR did not disappear altogether, as became obvious during the Algerian war of independence. HR are still much more controversial in than in the , and this is obvious in the subtext of the constant reference to “citizenship”. Opposition to the integration of minorities is not just due to Muslim fundamentalists, but also to French “differentialists”, within the extreme Right, and beyond it. .
A more detailed analysis of the treatment of HR issues highlights similar ambiguities, and the very uneasy relationship between the two countries with what is supposed to be their national approach of HR. This is probably evidence of the difficulties they experience more than of real convergence. Both NGOs and public bodies such as the Halde in have adopted ambiguous stances on the question of the veil, even though the issue had been settled at a national level, on a political plane, and within public opinion. The Halde issued a recommendation in June 2006, asking Mairies to proceed with naturalization ceremonies even when the applicant wore the Muslim veil, a highly controversial decision. Likewise, the LDH was divided during the debate on the wearing of veils in schools, and torn between its laïque, republican tradition and the fear of stigmatising Muslims. In the , the CRE has on the one hand criticized multicultural policies on the ground that they created an unacceptable “moral pluralism” and that society needed” a minimal area for agreement”. It has denounced the refusal of hybridity by some minorities . However, the argument was often presented as tactical, and motivated by the need not to bring about a white backlash, against antidiscrimination policies. The example of the , which had gone very far towards multiculturalism and completely reversed this trend, might well be at the back of the CRE’s mind.
The issues most prominent in the among NGOs, but obviously not among public bodies, are linked to the contradiction between security and HR. The political controversy centered on the government’s demand that detention without charge should be lengthened from 14 days to 90. This led to a compromise, around a figure, 28 days, which is still much higher than would have been considered acceptable before the terrorist outbreak, and which is high by any standard. Whether the government’s stance can be attributed to objective need, to undue pressure by the investigating bodies, or to the political need to put the stakes up in a context where the British intervention in Irak is increasingly seen as ill advised is open for debate. NGOs do not oppose systematically government policies, and accept the idea that evidence obtained by intelligence agencies, including monitoring telephones and the Internet can be held against suspects, which obviously ignores the principle of the privacy of correspondence, and condones eavesdropping even without legal control. Issues labelled as “privacy” are obviously connected to security. This includes the proposed creation of ID cards in , as well as CCTVs, for which the holds a world record. Electronic monitoring was turned into a fine art by the British authorities in , and , interestingly, this does not seem to have much prominence in NGOs’ campaigns. They seem to be much more incensed by the proposed ID card. French NGOs would seem to choose the opposite direction. ID cards are part of national culture, when CCTV are not.
Finally, public order in what the French call “la banlieue” is also a prominent issue. The debate focussed on ASBO’s in the . What is seen as problematic is not necessarily the principle of Asbos, but the fact that unelected bodies, which have not been granted any legal power or responsibilities by the nation, such as housing associations, or teachers, can apply for an asbo against citizens, and, in practiced, obtain it. In France, given the scope of the November 2005 riots, the complexity of the issue, the political ambitions of the “Ministre de l’intérieur”, and the results of the first round of the last Presidential Elections, which had some bearing on HR, the question has been treated on the political plane, in a very confused and low key fashion so far. However, this remains a very serious issue in the eyes of the population.
The contradiction between institutional convergence and thematic differences is obvious. Avenues for research now include a detailed analysis of specific issues, on the basis of bboth official and political documents, and of those emanating from NGFOS.