Human rights are based on values, which are broadly, if not universally, shared and are gradually converging towards a common set of standards that can be accepted and enforced. Nonetheless some query whether these ambitions, however admirable, are reflected in the realities of practice. Jeremy Bentham stated that ‘from real laws come real rights; but from imaginary laws…come imaginary rights’.[1] This led Marie-BA©nA©dicte Dembour to suggest from a realist perspective that the ECHR offers neither ‘real’ nor ‘imaginary’ rights but instead provides ‘relative protection’.[2] Dembour argues that the ECtHR is enmeshed in state interests[3] and in practice ‘the Commission and the Court have proved strong allies of government and order right from the beginning’.[4] To discuss Dembour’s views it is necessary to compare her thoughts on the ‘realist’ critiques, which Bentham mounted against the 1789 French Declaration and which international relations (IR) realists provide on human rights. Both theories reject human rights as emanating from ‘above’ or ‘outside’ the state but propose they originate from, and are enmeshed within the state itself, and reject there is a natural law governing the state, existing outside of social recognition, which surpasses positive national law or is able to regulate the way states interact. This will be tied to N v United Kingdom.[5] Bentham is best known as the founder of utilitarianism. He did not think that the Declaration provided real rights, for him real rights have a positive source in government. He did not believe in the existence of natural rights, which are assumed simply to exist therefore come from nowhere. He is of the view natural rights sound good but fail to deliver. For example, people are evidently not born equal, contrary to what the Declaration states. But if the rights of the Declaration are not to be taken literally, then they still mean nothing as they will need to be given restrictions and it is the government who sets these restrictions. What has been given with one hand (Declaration) will instantly be taken away with the other (government). Bentham as a utilitarian believes government is there to help society and should create the law. He opposes the view that rights emanate from ‘above’ or ‘outside’ the state, providing higher universal moral norms. Bentham favours rights existing in the positive world, over rights that are the product of the minds of utopian dreamers.[6] Bentham stated the rights in the Declaration were ‘nonsense upon stilts’[7] and a ‘mere effusion of imbecility’.[8] Contrary to Bentham, it is argued that there is human rights norms, therefore human rights exist to the extent and in the sense that justified moralities contain such norms regardless of what legal norms a given legal system may provide.[9] Society’s conceptions as holders of moral rights do not perhaps originate from the principle of utility.[10] It may be difficult to believe that rights in the Convention are grounded in utilitarian considerations, because they emerged as important moral concepts designed to enhance liberty, privacy and dignity – as Kant asserted within a few years of Bentham’s critique.[11] It may be more plausible to derive rights from society’s idea of the common good and morality. Realism can be described with three Ss’: statism, survival and self-help.[12] The state is the main player in IR, not civil society, international corporations or religion. Realism does not see that improvement is possible in international politics.[13] The idea is that state sovereignty is of principal importance. The state will always follow its own interests, do anything that is necessary to ensure its survival and will not be swayed by an alleged universal morality.[14] Forsythe examined whether realists are correct to think that human rights policy is subordinated to state interests. His conclusion is positive where he finds realism in IR ‘largely irrelevant’.[15] He has the view progress can be achieved in IR. However Pierre-Henri Imbert, the Director of Human Rights at the Council of Europe, does not believe human rights have fundamentally affected IR.[16] For him, human rights are instruments that allow states to pursue politics without safeguarding the dignity of the individual. Article 3 provides: ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. To decide whether the treatment violates the Convention, the court considers the facts to establish if suffering to which the individual has been or will be subjected reaches a threshold of ill treatment, called a minimum threshold of severity. Prior to N, the sole example of a medical asylum application where the court found that the threshold of severity was attained was D v United Kingdom;[17] a decision extensively discussed in N.[18] The applicant was a national of St Kitts, serving a prison sentence in the UK. While in prison, he contracted HIV. When he completed his sentence he was due to be deported and his illness was at an advanced stage. He claimed deportation to his home country would breach Article 3. The court stated that, when an individual claimed asylum for medical reasons: ‘the court must subject all circumstances surrounding the case to a rigorous scrutiny’.[19] In D, it was held the conditions were ‘very exceptional’.[20] The applicant’s immune system was irreparably damaged and his life was drawing to a close; in St Kitts he had no family or any other social support; and the medical treatment was inadequate. The minimum level of severity was reached. Mrs N, a Ugandan national was diagnosed as HIV-positive upon arrival in the UK and submitted an application for asylum, alleging that, should she be returned to her country, the National Resistance Movement would endanger her life and bodily integrity, this was rejected. Then she argued that returning her to Uganda would breach Article 3, since Uganda did not have the necessary infrastructure to treat her disease. The UK was found not to be in breach. The claim in N was approached in a manner similar to D, implying that both cases involved the same principles, but perhaps a line could be drawn to separate them based on the level of the applicants’ misfortune. The court suggested that, unlike Mr D, Mrs N did not face an extreme degree of suffering at the time of her case: she was not close to death; she was fit and able to travel, thanks to the medical treatment that she had received and she would at least have some family by her side. For these reasons, her situation was not very exceptional and therefore did not reach the minimum level of severity. Perhaps what led to the rejection in N, i.e. the real reason why the treatment was said not to reach the minimum level of severity, was not explicitly articulated in the reasoning of the majority, but was implied in the judgment when the court suggested that the Convention did not impose on Member States a duty to alleviate poverty through the provision of medical treatment to foreigners, as this would be extremely burdensome,[21] known as the floodgates argument. This point was stressed with regret: ‘the real concern that the majority of the court had in mind was that if the applicant were allowed to remain in the UK to benefit from the care that her survival requires then the resources of the state would be overstretched’.[22] A comparative reason was put forward by Lord Hope, who considered a violation of Article 3 ‘would result in a very great and no doubt unquantifiable commitment of resources’.[23] Mahoney JA stated in the Supreme Court of Canada that ‘the possibility of a flood of refugees may be a legitimate political concern, but it is not an appropriate legal consideration. To incorporate such concerns implicitly within the Convention refugee determination process, however well meaning, unduly distorts the judicial-political relationship’.[24] This supports Dembour’s when she sums up her argument: ‘I have shown how human rights remain enmeshed in state interests; allow us to evade important moral dilemmas which must be confronted’.[25] This is a prime instance when rights cannot really be above the state, as it would appear the state is ultimately still the source of these rights, not natural law, and the state is following its own interests by not having to overcompensate to accommodate refugees. It has been supported that there is no evidence that refugees easily flee their countries in order to enjoy privilege in an affluent but distant state.[26] Perhaps the majority was worried finding the UK in violation of Article 3, because this might reduce Member States power to turn away refugees in the future, which is in accordance with Imbert’s view that human rights have not fundamentally affected international relations and supports the view that the ECtHR is enmeshed in state interests and in practice the Commission and ECtHR prove to be strong allies of government. In conclusion, there are those who disagree with Dembour’s views about Bentham in terms of morality and also suggest realism is ‘largely irrelevant’ in IR. However other evidence points towards human rights being enmeshed in state interests. It is evident that human rights do not provide ideal rights, suggesting that it is like any other area of the law, which is in a permanent position of tension and debate between varies parties, and Dembour’s argument that the Convention acts as a very limited constraint on state power is widely received.[27] To believe that total harmony may emerge one day would disregard human nature.[28] The Convention does not and potentially could not sustain a position, which would be completely above realist considerations. It is likely realist considerations will continue to pervade human rights, and what is clear is that although human rights may sometimes differ in theory and practice, and have conceivably not fundamentally affected IR, there is little reason to suggest that society is now not better off than without their principles.[29] Dembour is matter-of-fact to declare that human rights provides ‘relative protection against the sandbag’, which is illustrated by the cases of N and D with N eluding the sturdy but not impenetrable barricade. Dembour rightly points out human rights have allowed states to dodge moral dilemmas but this hard reality does not make the concept of human rights completely ineffective.
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[1] J. Bentham, Selected Writings on Utilitarianism, (Hertfordshire: Wordsworth, 2000), p.458. [2] M. Dembour, Who Believes in Human Rights? Reflections on the European Convention, (Cambridge: Cambridge University Press, 2006), p.59. [3] Ibid, p.272. [4] Ibid, p.47. [5] App. No. 26565/05, (ECtHR, 27 May 2008). [6] Dembour, op.cit., p.31. [7] Bentham, op.cit., p.405. [8] Ibid at 441. [9] H.A. Bedau, ‘”Anarchical Fallacies”: Bentham’s Attack on Human Rights’, Human Rights Quarterly, (2000), p.276. [10] Ibid. [11] I. Kant, Grounding for the Metaphysics of Morals, (J.W. Ellington tr, 3rd edn, Cambridge: Hackett Publishing Company, 1993). [12] T. Dunne and B.C. Schmidt, ‘Realism’, in J. Baylis and S. Smith (eds), The Globalization of World Politics: An Introduction to International Relations, (Oxford: Oxford University Press, 2001), p.141. [13] R. Jackson and G. SA¸rensen, Introduction to International Relations, (Oxford: Oxford University Press, 1999), p.68. [14] C. Sylvest, ‘Realism and international law: the challenge of John.H. Herz’, International Theory, vol.2, no.03, (2010), p.439. [15] D. Forsythe, Human Rights in International Relations, (Cambridge: Cambridge University Press, 2000). [16] P.H. Imbert, ‘L’ des droits de l’homme dans les relations internationales’, in SociA©tA© franA§aise pur le droit international, La protection des droits de l’homme et l’evolution du droit international, (Paris: Pedone, 1998), pp.282-285. [17] App. No. 30240/96, (ECtHR, 2 May 1997) [18] Ibid at 32-34. [19] Ibid at 49. [20] Ibid at 54. [21] N at 44. [22] Ibid at 8. [23] N (FC) v Secretary of State for the Home Department [2005] UKHL 31 at 20. [24] Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 at 57. [25] Dembour, op.cit., p.272. [26] M. Foster, International Refugee Law and Socio-Economic Rights, (Cambridge: Cambridge University Press, 2007), pp.344-348. [27] W. Twining, General Jurisprudence: Understanding Law from a Global Perspective, (Cambridge: Cambridge University Press, 2008), p.184. [28] C. Tomuschat, Human Rights: Between Idealism and Realism, (3rd edn, Oxford: Oxford University Press, 2014), p.431. [29] C. Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century, (Oxford: Hart Publishing, 2000), p.2.

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