The fiftieth anniversary of the declaration of human rights.
'Human Rights' are fundamental privileges or immunities to which all people have a claim. They are not 'given' by governments since they are derived automatically from being human. Since governments cannot 'give' human rights, they should not try to take them away. Human rights thinking - especially since 1945 - is based on the assumption that in essence all humans have a common core. Humans may be divided on gender lines, speak different languages, and have different skin colours. But fundamentally there are great similarities and these similarities are manifested partly in the rights which all humans enjoy.
The initiative for the UDHR came about as a reaction to World War II. First, Hitler had shown that a country which violates human rights at home may eventually violate human rights overseas, and so it was necessary to nip such threats in the bud. Also the Allied countries were embarrassed that none of them had complained officially between January 1933 (when Hitler came to power) and September 1939 (the onset of World War II) about the treatment of the Jews. The Allies claimed that countries were not allowed to interfere in the internal affairs of other countries - and so this ban prohibited even making criticisms of other governments' internal policies.
Second, there was the role of private citizens and non-governmental organizations. The British writer H. G. Wells called for a Great Debate on War Aims. He argued that beating Hitler was not sufficient and that the Allies must have positive and not just negative aims. He proposed that the outcome should be a re-assertion of the rights of individuals everywhere in the world. He argued that the historic moment had arrived for a re-definition of the rights and opportunities of the individual and a protection of the individual against the encroachments of centralized authority. The Daily Herald, which then had the largest circulation of all the British newspapers, undertook a public educational campaign which seems unbelievable by today's standards of the tabloid press - and even more so since a war was under way. With H. G. Wells, the newspaper produced a version of the Rights of Man in the Twentieth Century. Wells introduced each group of clauses by an article. The newspaper arranged for leading thinkers in Britain to argue the clauses and for ordinary readers to have their say. Newspapers were sold widely not only to the usual readership but also to, for example, universities and church guilds. These groups sent in their views. The responses were assembled for consideration by the drafting committee which was to produce the consensus of British thinking about human rights. The results were much later submitted to the UN Commission on Human Rights.
Finally, there was the 'Four Freedoms' speech of President Franklin Roosevelt in January 1941. The United States was not yet at war but that involvement could not be deferred for much longer. In the meantime, Americans should rededicate themselves to the four basic freedoms of humankind: the first was freedom of speech and expression; second, freedom of every person to worship God in his or her own way; third, freedom from want, which meant economic agreements to secure to every country a healthy peacetime life for it's inhabitants; and fourth, freedom from fear, which meant a world-wide reduction of armaments to such a point that no country would be in a position to commit an act of aggression against any other.
The UN Charter was written in the last stages of World War II. At the 1945 San Francisco Conference which finalized the Charter, there was a proposal that the Charter contain an International Bill of Rights in the same way as the US Constitution has its own Bill of Rights. There was not enough time to act on this proposal. Instead, it was agreed that a Commission on Human Rights should be established and it should produce the International Bill of Rights as its first task. The UDHR (the Bill's first stage) was written by the Commission in about eighteen months. The Commission was chaired by Eleanor Roosevelt, the widow of President Roosevelt.
The UDHR sets out, in 30 articles, the fundamental freedoms to be promoted and protected. The rights are often listed in two categories The first are the traditional rights which appear in documents such as the Magna Carta and the US Bill of Rights and which protect the individual from the government. These rights include: the right to life, liberty and security of person; freedom from torture and slavery; political participation; the right to own property; the right to equality and freedom before the law, freedom of movement; and freedom of opinion, expression, thought, conscience and religion.
The second category are rights which have been recognized in the past century and which impose obligations on governments actively to help their citizens. These rights include: the right to social security; the right to work, to free choice of employment, to just and favourable conditions of work, and to protection against unemployment; the right to equal pay for equal work; the right to form and join trade unions; the right to rest and leisure, and holidays with pay; the right to education; everyone has the right freely to participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement and its benefits.
The UDHR was adopted by the UN General Assembly on 10 December 1948. It was adopted with no negative votes but with some abstentions: the USSR (because of the UDHR's right to own property), South Africa (which opposed the principle that blacks were equal to whites) and Saudi Arabia (which opposed the principle that women were equal to men).
All UN General Assembly resolutions are not binding and so it was necessary to convert the UDHR into a treaty which would then be binding on all governments which agreed to be bound by it (the International Bill's second stage). This work resulted in two treaties: the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. These were completed in 1966 and entered into force in 1976.
Two treaties were written because of the different problems of implementing the two types of rights. Civil and political rights are rights which the individual has against his or her own government - and so since the government is the potential violator of those rights it is also the protector of them. Economic, social and cultural rights require, by contrast, the active involvement of the government in the life of the country, so as to ensure, for example, that the economy is growing in such a way as to provide opportunities for employment and that there is equal pay for equal work. A government can claim, however, that although it is in favour of full employment, for example, the economic conditions do not permit it.
Thus, both treaties have a common system of periodic reports. Each government ratifying each treaty agrees to provide the UN on a regular basis with a report on what it has been doing to respect the human rights listed in the treaty.
The Civil and Political Covenant also provides for a system of state-to-state complaints. Governments which agree to be bound by this system agree that the UN may receive complaints from other governments which have also agreed to this system and to investigate the complaints. This is a system of encouraging governments to urge each other to respect civil and political rights. The First Optional Protocol to this Covenant goes a step further. Governments which agree to be bound by the Protocol agree that the UN may receive complaints from their own citizens and investigate them.
These implementation measures all seem very mild. Even if the UN's investigation finds that a government has behaved badly, the UN has no power to do anything about its findings other than make them public. For example, there is no world police force to 'arrest' a 'guilty' government and there is no 'world prison' for guilty governments. Additionally, the UN's human rights budget is minute - much less than the total funds spent each year by Amnesty International, one of the world's most important nongovernmental organizations. (The total regular UN budget is less than that of the New York city council.).
However, when viewed in the context of the evolution of the international protection of human rights, the post-war developments have been spectacular. First, human rights are part of the political vocabulary. Political claims are expressed in terms of 'human rights'. Even if people are unfamiliar with the details of the UN's declarations and treaties, there is widespread interest in human rights and people are now more likely than ever before to oppose abuses of governmental power which violate human rights. People are still treated badly - but they know their rights are being violated. People are not dying in ignorance.
Second, the UN has produced a diverse range of declarations and treaties flowing from the UDHR. Among some of the more notable treaties are: the 1951 Convention on the Prevention and Punishment of the Crime of Genocide, which provides for the prosecution of anyone charged with commissioning acts intended to destroy, in whole or in part, a national, ethnic, racial or religious group; the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits discrimination and the dissemination of ideas based on racial superiority or hatred; the 1981 Convention on the Elimination of All Forms of Discrimination against Women, which addresses sexual discrimination in public life, education, employment, health, marriage and the family; the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which holds governments responsible for preventing torture and punishing torturers, even those acting under orders; and the 1990 Convention on the Rights of the Child, which defines primary health care and education, among others, as rights of all children.
Third, the UN is also creating a network of techniques to assist governments in protecting human rights. For example, UN officials have helped the new governments in Eastern Europe devise electoral reforms.
Fourth, the UN's work is being copied at the regional level. The best example is the Council of Europe (which contains all of Western Europe's countries). The Council's work is particularly good on civil and political rights and the Council's human rights machinery has the power to coerce member governments to change their policies or risk expulsion from the Council. This happened when the Colonels took over in Greece in 1967 and began torturing their opponents. Greece left the Council just hours before it was going to be expelled. Greece later wanted to join the European Economic Community (which is separate from the Council). But the EEC's membership would not accept Greece while it was ruled by an undemocratic government that was barred from membership of the Council of Europe. Greece could only join the EEC once democracy had returned and Greece was back in the Council.
Finally, the UDHR has provided an opportunity for non-governmental organizations (NGOs) to lobby governments to improve their human rights records. Some governments do make private requests to governments to improve their human rights policies. But they are inhibited by the limitations of diplomacy on what they may do in public. NGOs are not so restrained. For example, it was Amnesty International which led the campaign against Greece at the Council of Europe.
To conclude, it is useful to speculate on how the human rights movement will evolve in the next fifty years. The UDHR conflicts with the basic idea of national sovereignty, that is, each country governs itself and cannot be forced into accepting international obligations. Its 'internal' affairs remain its internal affairs and so it cannot be forced into accepting any international involvement in its human rights policies.
The inter-war League of Nations recognized this principle. Article 15(8) of its Covenant ruled out any involvement in matters which are 'solely within the domestic jurisdiction' of a nation. The League was very innovative in protecting the rights of minorities in the former Austrian and German empires but its overall human rights work was very small compared with the UN's.
The UN Charter's equivalent provision - Article 2(7) - is more flexible. It rules out any involvement in matters 'which are essentially within the domestic jurisdiction' of any nation. The use of 'essentially' - rather than 'solely' - was derived from other provisions of the UN Charter which noted the importance of human rights. These provisions foreshadowed some UN involvement in domestic human rights issues.
Article 2(7) has been gradually eroded. For example, in the late 1940s, India raised at the UN General Assembly the racist policies of South Africa. South Africa claimed that these could not be discussed because they were an internal matter under Article 2(7). South Africa managed to win that argument for over a decade. But gradually, apartheid became an agenda item for the UN.
Chile is another example. I was at the 1974 annual meeting of the UN Human Rights Commission when some countries and NGOs raised the human rights violations that had occurred since the September 1973 Pinochet-led military overthrow of the democratically-elected President Allende (see last month's Contemporary Review). Chile argued that recent developments were only an internal affair but many of the Commission member-nations did not accept that.
Governments nowadays rarely even bother to try to use the Article 2(7) argument. For example, China tried to claim that its human rights policies are internal affairs but received no support - and lost the bid to hold the 2000 Olympics partly because of its well-publicized poor human rights record. Thanks to Cable News Network (CNN), the world was able to see the 1989 Tienanmen square massacre live and direct from Beijing. The world has come a long way from the refusal of the UK, France and the US to comment on Nazi Germany's 'internal affairs'.
But does this progress, ironically, also create its own set of problems? Will the UN's ambitions outrun its capacity actually to protect human rights? Will there be unrealistic expectations by human rights victims of what the international community can do to help them? Will CNN encourage the UN to take on too many tasks? If Article 2(7) is eroded, what (if anything) is still meant from the phrase 'national sovereignty'?
These questions go to the heart of the debate over the future of the system of nation-states. For example, a person in Somalia or Rwanda may well say that they have had enough of Article 2(7)'s protecting corrupt African regimes. They prefer Article 2(7) to be eroded so that foreign aid can get in.
The world has certainly come a long way from 1948. In only fifty years, we are now pondering a set of questions that would have been unimaginable in December 1948.
Keith Surer is Vice-President, International Commission of Jurists (NSW) and Director of Studies, International Law Association (Australian Branch).
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|Date:||Dec 1, 1998|
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