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3 - Nonsense on international stilts?

Published online by Cambridge University Press:  05 October 2014

Thomas H. Bingham
Affiliation:
Baron Bingham of Cornhill
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Summary

We cannot doubt that Miss Hamlyn would have been intensely proud of the liberties and protections afforded by our domestic law, common law and statute, to those living in these islands. But it seems unlikely that the expression ‘human rights’ would ever have crossed her lips, or that the concept loomed at all largely in her consciousness. To the extent that it did, she would have thought in purely national terms. Magna Carta and the Petition of Right 1628, after all, important though they were, had no extra-territorial application, and were in any event more concerned to constrain the power of the Crown than confer rights on individuals. The French Declaration of the Rights of Man and the Citizen 1789 and the United States Bill of Rights 1791 certainly did have the object of conferring rights on individuals, but they too had no extra-territorial application. Miss Hamlyn’s outlook was largely shared by her first lecturer, Sir Alfred Denning (as he then styled himself), in his justly celebrated 1949 lectures Freedom under the Law (which, amazingly as it now seems, earned him a rebuke by the Lord Chancellor of the day for exceeding the bounds of judicial reticence). Lord Justice Denning did, it is true, acknowledge that in some respects the French system of administrative law afforded the citizen better protection than our own system, but he was doubtful if this system would suit us here. In the main he referred to foreign systems in order, as Miss Hamlyn would have wished, to highlight the advantages which British citizens enjoyed under our own law. If he addressed the substance, he did not use the language, of human rights, let alone the international language of human rights.

It was in 1948, with the Universal Declaration of Human Rights, that human rights went global. The importance of the Universal Declaration is easy to underestimate, partly because it lacked any means of enforcement, partly because some of its articles were somewhat lame; Professor Sir Hersch Lauterpacht described Article 14, on asylum, as ‘artificial to the point of flippancy’. But these drawbacks should not blind us to the momentous implications of the Declaration: the adoption by the General Assembly of the newly formed United Nations, with forty-eight votes in favour, eight abstentions and no votes against, of a common standard of rights to be universally observed and secured.

Type
Chapter
Information
Widening Horizons
The Influence of Comparative Law and International Law on Domestic Law
, pp. 55 - 83
Publisher: Cambridge University Press
Print publication year: 2010

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References

Brian Simpson, A. W., Human Rights and the End of Empire (Oxford University Press, 2001)
Fitzgerald, E. and Starmer, K., A Guide to Sentencing in Capital Cases (London: Death Penalty Project, 2007)

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