On 5 February, 2016 the UN Working Group on Arbitrary Detention (WGAD) found that the UK and Swedish governments had ‘arbitrarily deprived’ Wikileaks founder, and alleged rapist, Julian Assange, of his liberty. In the process, these liberal democracies had breached articles 9 and 10 of the UN Universal Declaration of Human Rights (1948) that condemns arbitrary arrest and asserts the human right to a ‘fair and public hearing’ before an impartial tribunal. Assange found the decision ‘sweet’. His lawyers called the finding ‘a resounding victory’, describing Assange’s self-chosen detention in the Ecuador Embassy ‘a grave international crime akin to torture and cruel and inhumane treatment’. The UK and Swedish governments decision to ignore the WGAD ruling and intentionally ‘continue this crime’ threatened, they opined, ‘the rights of victims everywhere’.
From this Olympian human rights perspective, the UK and Swedish authorities ‘political posturing’ over Assange placed these constitutional democracies in the same category as serial human rights abusers like North Korea, China and Russia. What, we might wonder, does this tell us about the character of the evolving transnational human rights regime?
Assange’s defence is based on a specious legal equivocation, namely, that if Assange returns to Sweden he might be extradited to the US to face a very different set of charges to do with his serial Wikileaking. This assumption is without common law foundation as his team of human rights lawyers subsequently discovered when they tested it in the UK supreme court in June 2012. Simply put, Sweden had issued a European arrest warrant for Assange’s detention and the UK authorities complied. When Assange’s lawyers failed to overturn the warrant, he breached the terms of his bail fleeing to the Ecuador Embassy seeking refuge and ultimately asylum – a fugitive from the law rather than a victim of cruel and unusual treatment. Moreover, given that the UK followed due legal processes, according Assange’s fear of extradition to the US ‘a fair and impartial’ public hearing, it seems odd to make a case for arbitrary detention, let alone consider the UK and Sweden in breach of the UN Declaration. Indeed, one member of the four man working group who issued opinion 54/2015,The Case of Julian Assange, Vladimir Tochilovsky, dissented from the ruling, observing that Assange’s liberties had been restricted not deprived. Significantly, Tochilovsky was the only practicing lawyer in the group. The other members comprised an Assistant Professor from the little known Arcadia University where he teaches African Affairs, an international law academic at the equally obscure Yonsei University, South Korea and Jose Guevarra who formerly served as head of the Mexican mission on human rights at the United Nations.
Interestingly, those who made the decision have little practical legal or political experience, but instead share a commitment to an abstract moral doctrine of legal salvationism, that seeks to move issues such as policing, security and penal policy out of the political arena and into the hands of trnasnational human rights commissars. Indeed, Assange’s exaggerated claims of torture and abuse reveal what the late Irving Kristol saw as ‘the sea of sentimentality on which the issue of human rights has floated’ and which actually forms an accessory to a form of ideological utopianism. Despite the conventional progressive academic and media pieties accorded the Universal Declaration of Human Rights, it in fact introduced an era of bad faith in rights talk. From its inception the Declaration concealed its real purpose, which was the moral disarmament of the bourgeois, liberal, West. In particular, by equating social and economic rights with a classic liberal understanding of individual property rights, the Declaration established a moral equivalence between capitalist democracies and communist or socialist regimes. As Kristol argued, ‘the hidden agenda’ of human rights legitimised totalitarian or authoritarian societies that promoted social and economic rights, but not individual freedoms, as part of an officially redistributive ideology. Left leaning despotisms thereby acquired their own distinctive egalitarian virtues. The traditional liberal constitutional state referred not to human rights but individual rights, which as Burke noted were ‘claims against the claimant’s own community, and depend for their legitimacy on recognition by that community’. The only socio-economic right was the right to property including, as John Locke observed, the property in one’s own labour.
After the Cold War, however, the equivocal understanding of human rights trumped democratic legal rights. Human rights proliferated to cover an ever expanding area of fashionable moral enthusiasms ranging from gender to multicultural, environmental and religious rights to name a few areas into which the transnational regime expanded. Yet at the same time as human rights think promotes a managed, moral universalism, it has also continued, in the post-Communist world, to extend an extraordinary tolerance towards illiberal, autocratic and authoritarian regimes. Thus Christophe Pechaux, the UN head of section responsible for the WGAD, praised the Chinese government for holding a Human Rights Forum in Beijing in 2013. Significantly, he maintained that progress in the universal human rights regime could only occur through consultation, cooperation and dialogue with China, a ‘right’ evidently not accorded to the UK or Sweden.
The right inhering in the liberal individual self owner has been transvalued by this promotion of abstract human rights as a benefit attaching to minorities or groups who can claim the status of freshly minted victims. Ironically, the management of human rights in the name of an abstract conception of justice undermines both individual freedom and the rule of law in constitutional democracies. The prevailing orthodoxy in academic international relations and international law has adopted the fashion for expressing current elite moral opinion in the abstract language of human rights. But the essence of freedom in a liberal democracy is to have only one right, the right to do anything as long as it does not conflict with the rule of law exercised by a de jure authority and made by a sovereign parliament.
The rule of human rights violates this understanding and instead deploys abstract rights as battering rams against the autonomy of democratically accountable institutions. The WGAD ruling that finds Assange above the law of the land demonstrates just how far the despotism of transnational human rights accountable only to a transnational elite has gone.