René Cassin roundtable discussion, led by Lord Daniel Finkelstein

(held under the Chatham House Rule)

On 12 November 2018, René Cassin held an invitation-only roundtable discussion on the rule of law, its centrality to the maintenance of human rights norms, current trends that threaten its stability, and how civil society might respond in its defence.

Article 28 of the Universal Declaration of Human Rights states us that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.”

René Cassin organised the event because we fear that the consensus that created that ‘social and international order’, and so enabled the development of a human rights framework, is threatened by a rise in nationalism, illiberalism and populism. We invited a small group of experts – lawyers, academics, campaigners, quango professionals, journalists, politicians and Jewish community leaders – to examine whether those fears are justified and what we and like-minded organisations and individuals should do in response.

René Cassin is grateful to Bryan Cave Leighton Paisner for hosting this event.

Opening questions – Danny Silverstone, chair of René Cassin

1. Are we at a turning point in the rule of law story?
2. How do we broker / broaden discussion beyond the ‘usual suspects’?
3. What are the prospects looking ahead?
4. Were we delusional in assuming that the onward march of human rights was immutable?
5. What is the distinctive space for Jewish communities and voices?

“Difficulties and dilemmas” – initial questions – Danny Finkelstein

1. When is ‘liberal intervention’ justifiable?
2. How best to deal with politically unpopular issues like refugees and asylum?
3. Who decides on what the law actually is?

Key points raised by participants

Antidotes to ‘big ideas’

• Human rights and the rule of law emphasise human dignity and the inviolable rights of the individual
• Focus on ‘small places, close to home’ – in contrast to ‘big ideas’ of authoritarian right and left

Legitimate use of force

• Sometimes these principles need to be defended by force, both nationally and internationally
• But we need to apply the caveat re the thrill of using violence in a good cause
• Nuremberg was ‘victor’s justice’ with a difference – for the first time (to paraphrase Justice Jackson) power deferred to reason

Threats to the rule of law are real

• In Europe, Hungary and Poland are threatening to redraw the political map
• Populism and authoritarianism are on the rise
• We’re forgetting the post war reasons for establishment of rule of law and human rights norms
• There are warning signs in the appalling treatment of immigrants

And what underpins the rule of law is not solid

• The institutions underpinning the rule of law are more fragile than we realise
• We should be less complacent
• Adversarial politics doesn’t help
• Public opinion is volatile and contingent
• What protections against “the rule of law going bad”?
• Economic anxiety makes us much less welcoming to immigrants
• Rise of anti-Semitism in many European countries

We need to listen to opponents’ arguments

• Rule of law isn’t perfect. Many abuses have occurred within a legal framework – e.g. slavery, apartheid and the Holocaust itself. Indefinite immigration detention in the UK breaches basic principles of criminal law
• Rule of law and human rights are remote and abstract, seen as relevant to ‘others’. Most people more affected by private actors around economic, social and cultural rights like housing and employment. We shouldn’t dismiss as ‘populism’ arguments that tackle issues around fair distribution of resources
• With austerity, concern about undermining the rule of law via cuts to legal aid and access to justice are not a vote-winner, especially in comparison to more popular issues like health

How should we respond?

• Problems easy to identify, solutions less so. They need to be multi-faceted and we need to adapt our arguments
• We need to remake the case via education and dialogue
• We should look to support and strengthen institutions that respect human rights
• We should defend ‘politics’ – i.e. recognition of need for dialogue and compromise, and respect for diversity – and move arguments away from lawyers and towards politicians and the public
• We should build coalitions, by seeking points of agreement, drawing as many as possible into the fold
• We should look to emphasise deep rooted, underlying and universal values which we can build support and protections on – rather than abstract principles – i.e. not defend rule of law and human rights per se, but as tools to achieve social and political ends

What next for René Cassin on this issue?

We are in discussions with the Bingham Centre for the Rule of Law with a view to organising a series of events next year to examine the issue in depth.