Why must human rights be protected by the rule of law? Victoria Walne, winner of the 2007 Graham Turnbull prize, explains what happens if they are not


The preamble to the Universal Declaration of Human Rights (UDHR) 1948 states that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.



The UDHR was written in the aftermath of World War II, when an attempt was made to define a standard of rights to which all states should endeavour to adhere.



The problem with attempting to define the ‘rule of law’ is that, as one academic once wrote, it is ‘a chameleon-like notion. Used by different people it may mean radically different things.’



Lord Bingham, the law lord, summarised the concept of the rule of law in a 2006 lecture: ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively, promulgated and publicly administered in the courts.’



Broadly speaking, it is agreed that the rule of law, at its very basic level, is the principle that all human beings should be ruled by laws. It follows that these rules should be clear and accessible. Because everyone is to be judged according to these same rules, the rule of law prevents the state from acting outside of these rules. The concept is therefore a safeguard against arbitrary governance.



Academic opinion about the extent of the principle is, however, divided. On the one hand, some academics argue that the rule of law can legitimately be associated with substantive human rights. Lord Bingham recently remarked that ‘a state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law…. the rule of law must surely require legal protection of such human rights as, within that society, are seen as fundamental.’



On the other hand, some scholars maintain that the rule of law is merely a procedural concept. This means that, in effect, the state can do whatever it likes provided it remains within the constraints of the law. Joseph Raz states that ‘a non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies. This does not mean that it will be better than those western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.’



While it is understandable to regard the notion of the rule of law and the protection of substantive human rights as synonymous concepts, it is argued that, while the definition of the rule of law is a vague concept, it does not have such a wide meaning. The two concepts are mistakenly used interchangeably because they are invariably found together. However, this essay will follow Raz’s assertion that the rule of law should not be confused with substantial human rights.



The most effective way of illustrating why human rights must be protected by the rule of law is to ask: what happens if they are not? What happens to human rights when a state’s legal system fails to impose meaningful restraints on the state and the ruling elite?



Sadly, history is full of examples of laws that favour certain groups of individuals at the expense of others. Black citizens in apartheid South Africa, slaves in 18th and 19th century America and Jews in Nazi Germany are prominent examples of groups of people who have been denied the protection afforded by the rule of law.



These examples alone would suggest that inequality before the law is an archaic phenomenon. A glance at the world’s newspapers today show that the need for protecting our human rights by upholding the rule of law is as pertinent now as it has ever been.



Modern China is a case in point. While China’s constitution appears on the surface to afford protection of human rights akin to democratic countries, gaping holes in its legal system undermine this facade.



The concept of the rule of law is entrenched in article five of the Chinese constitution, which states: ‘The People’s Republic of China practices ruling the country in accordance with the law…. no laws or administrative or local rules and regulations may contravene the constitution. All state organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the constitution and the law… no organisation or individual is privileged to be beyond the constitution or the law.’



However, it is one thing to enshrine the principle of the rule of law, but quite another to ensure its implementation in practice.



In China, the fate of Falun Gong, a spiritual self-improvement practice, during the past decade illustrates the way in which fundamental human rights can be undermined by breaches of the rule of law. Since 1996 the Falun Gong movement has been targeted by the government because of its immense popularity and its appeal to all social strata, which is considered a threat to communism.



While article 36 of the Chinese constitution theoretically gives citizens the right to freedom of religion, the stark reality is that such freedom is only enjoyed by state-approved religions, with the term ‘religion’ being given a restrictively narrow interpretation. The right is therefore a qualified freedom, selectively and unequally applied at the discretion of the state.



To counter the ‘threat’ posed by Falun Gong, the Chinese government has promulgated rules and orders that create exceptions to existing laws for cases concerning certain groups, such as Falun Gong practitioners. In no way can it be claimed that the followers of the Falun Gong movement have been treated equally to adherents to other faiths, religions or spiritual practices with regard to their rights under their constitution.



Since the late 1990s, Falun Gong practitioners have been arrested and sent to labour camps for ‘re-education’. A huge state-propaganda campaign has been implemented in an attempt to suppress the movement. September 1999 saw the first case of a Falun Gong adherent tortured to death in custody.



Gao Zhiseng, a leading Chinese human rights lawyer, who, in December 2004, took on the fight for the Falun Gong movement, has had his law firm shut down, his practising licence revoked and on 21 September 2006 was arrested, without a warrant, on charges of ‘inciting subversion’.



The vagueness of this charge is in itself a violation of the rule of law, which requires that the laws by which an individual is judged be clear, precise and accessible. The Chinese state regularly uses other ambiguous offences such as ‘leaking state secrets’ to justify the imprisonment of human rights activists and peaceful protesters.



Broadly defined crimes such as these afford the state a wide discretion which, in effect, gives state officials a license to act on a whim, in any way they see fit, regardless of the theoretical confines of the constitution and its supplementary legislation.



The Chinese state justifies such action with public order and national security excuses. This leads to the question of whether breaches of the rule of law can ever be excused in response to threats against the state and the security of its citizens. Lord Denning certainly thought so when he stated that in ‘a case in which national security is involved… our cherished freedoms may have to take second place. Even natural justice itself may suffer a setback.’



In the current post-9/11 atmosphere, the US and UK governments have, in certain circumstances, considered the suspension of the rule of law to be a necessary and viable tool in the so-called war on terror.



Lord Steyn, the former law lord, refers to the ‘black hole’ of Guantanamo Bay where concepts such as the due process of law see no daylight. In Guantanamo Bay, the US government’s failure to provide, to the 400 or so ‘enemy combatants’ detained there, access to legal advice, right to a trial or even details of the case against them has been justified by recourse to the current climate of terror.



In a speech for the Mary Ward Legal Centre, human rights solicitor Clive Stafford-Smith likened Guantanamo Bay to a James Bond movie, observing that the detention camp was shrouded in secrecy where all actions are justified by hushed references to a higher but elusive goal.



It is this secrecy which gives the state dangerous and unbridled control over its citizens. Such lack of accountability renders the US government above the law. The state attempts to justify such a flagrant breach of the rule of law because it is an exception to the rule.



However, it is no defence to assert that Guantanamo Bay is an anomaly. The yardstick by which a state’s commitment to upholding the rule of law is judged is not how frequently it adheres to the principle, but rather how easily a state denies an individual treatment according to the rule of law.



As the case of China illustrates, the most effective and robust safeguard of human rights is not the theoretical guarantee of a state’s written constitution. Instead, it is the controlled and benevolent exercise of discretion by state officials acting within the constraints of the law that guards our rights and freedoms.



It is one thing to pay lip-service to human rights through the promulgation of written laws, but it is quite another to ensure that these rights are adequately protected through the even and equal implementation of these laws. Adherence to the rule of law does not inevitably ensure the safeguarding of fundamental rights and liberties. However, where a state legislates to protect an individual’s human rights, such laws are effectively worthless unless underscored by a state’s commitment to the rule of law.



Victoria Walne is a legal practice course student at BPP


l The Graham Turnbull essay competition was named in honour of a human rights lawyer killed in Rwanda in 1997.