The Universal Declaration of Human Rights
Let us leave the contemporary use of the concept of crimes against humanity and return to the end of the Second World War. The establishment of the United Nations signaled the beginning of a period of unprecedented international concern for the protection of human rights. Under the auspices of the UN, several key instruments were established for the promotion and protection of human rights. The day after the adoption of the Genocide Convention, the General Assembly proclaimed the Universal Declaration of Human Rights 'as a common standard of achievement for all peoples and all.
An evaluation of the relevance of the Universal Declaration, as it turns 60, would have to conclude that the Declaration has had a huge influence, both in terms of spreading the philosophy of human rights, and in terms of inspiring legal texts and decisions. Translated into over 300 languages, it has often been at the heart of demands made by peoples and individuals around the world that their rights be respected and protected.
Several constitutions have taken its provisions as the basis for a bill of rights, and national and international courts have invoked the Declaration in their judgments. The member states of the UN have come to acknowledge that the Declaration, although not in the form of a binding legal instrument, does contain actual human rights obligations. In 1968, the Teheran International Conference (the first World Conference on Human Rights) 'solemnly' proclaimed that 'The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.' By proclaiming the Universal Declaration in 1948, and continually reaffirming the obligations that stem from it, the UN General Assembly has given an international meaning to the expression 'human rights'.
Article 1 sets out the philosophical foundations upon which the Declaration is based, using language similar to that of the French Declaration of 1789: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.'
The Declaration therefore stresses the inherent value of human dignity, which should be recognized 'without distinction of any kind'. The Declaration sets certain limitations on the exercise of human rights, recognizing the need for a social order for the full realization of the rights. Article 29 acknowledges that the individual owes certain duties to the community 'in which alone the free and full development of his personality are possible'. The limits imposed by these duties must be determined by law, and can only be for the purposes of securing due recognition and respect for the rights of others and to meet 'the just requirements of morality, public order and the general welfare in a democratic society'.
Commentators have sometimes described the vision expressed in the Declaration as Western', and the committee that drafted the Declaration was indeed skewed westward. Abdullahi An-Na'im has pointed out that 'the only representatives of non-Western countries in that committee were Chang Peng-Chung of China and Charles Habib Malik of Lebanon. Both had been educated in American universities, and both reflected their "westernization" in the positions they took during the debates.' But An-Na'im's point is not that greater participation by non-Western diplomats would have produced a radically different document. An-Na'im wants to stress that it was unlikely that 'those representatives could reasonably have identified with, and genuinely represented their indigenous cultural traditions at the time of the drafting and adoption of the Universal Declaration and the Covenants'.
For him, the lack of concern for cultural legitimacy 'may have diminished the validity of international human rights standards as seen from non-Western cultural perspectives', while the main influences were limited to official representatives from Latin America, the Soviet Union, the United States, and Europe, and not drawn from a wider variety of cultures. Since that time the governments of new UN member states have endorsed not only the idea of human rights, but also consider the Universal Declaration as a starting point for all human rights discussion.
No government currently questions the commitments contained in the Universal Declaration. The major controversy for diplomats at the time of the Declaration's adoption was not the validity of the values contained in the Declaration, but rather the antagonism between the Socialist bloc and the West. In the end, the Socialist states were unable to achieve their vision of an effective implementation of economic and social rights and abstained from the vote on the Declaration.
The Western powers, while keen to trumpet their own political model as superior, were at the same time careful to ensure the Declaration had no immediate legal effect.
Are human rights now really universal? While it is true that African and Asian governments currently accept the Universal Declaration and have signed various human rights treaties, such a formalistic response fails to capture the cultural differences in the appreciation of what human rights are about, and what new obligations ought to be included in the catalogue. An-Na'im suggests that the feeling of a lack of cultural legitimacy can be addressed through a cross-cultural critique of behaviour which builds on locally accepted norms. The pressing issue is not so much whether the representatives in 1948 legitimize the claims of universality, but rather how we now build a universal appreciation for these ideas.
Some governments object to the demand that human rights include the concept of collective rights' for indigenous peoples or minorities. This objection is based on a particular appreciation of what human rights should be about (for example, some derive human rights from the starting point that there is an imagined social contract between the individual and the state); it is, however, hard to square this conceptual objection with the explicit recognition in Western countries of certain 'human' rights guarantees for entities such as newspapers (for freedom of expression), trade unions (for freedom of association), and companies (for respect for their property and premises). Similarly, contemporary debate about economic, social, and cultural rights is held hostage by those who consider that one cannot conceive of rights to housing, health, and education as judicially enforceable entitlements - better to see them as aspirations, public policy goals, or simply socialist rhetoric. We shall see later the extent to which human rights expert bodies have given meaning to such economic, social, and cultural rights.
So, even if there is apparent universal acceptance of the human rights message, there is still discord over what constitutes a human right and how rights should be implemented. Clearly a starting point should be enforcement at the national level. Today, in many states national laws reproduce, or give effect to, international human rights (i.e. international human rights are 'translated' into the national legal order). Needless to say, this is by no means a perfect process and many rights get 'lost in translation'.
Furthermore, as we move from lofty proclamations to detailed implementation and accountability, we encounter the reaction that rights have to be implemented according to the cultural and economic context of the country concerned. This is sometimes seen as the death knell for the credibility of the so-called 'universality' of human rights. It is, however, a mistake to imagine that human rights can, or should, operate divorced from any local context. Even the application of an accepted right, such as the right to life, can beg different interpretations depending on the context. In a recent case concerning a dispute between two estranged parents of frozen embryos, the European Court of Human Rights held that:
…in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.
The international judges were divided over the separate question of whether the destruction of the embryos constituted a violation of the mother's right to respect for her private life. Again, they considered the matter was better left to national legislators than to a judicial divination of overriding human rights principles. In different countries, the father's withdrawal of consent to implantation of an embryo has been given different weight. In the absence of 'international consensus' or 'common ground' among European states, the human rights Court found that the legislation before the Court (which required the father's consent before implantation of the embryo) was within the margin allowed by the European Convention on Human Rights. In short, human rights law does allow for different approaches to implementation across cultures and nations. At the same time, there is, of course, a sense that there is some core content to each right, and that failure to respect that content can be universally condemned.
Mr Vyshinsky (USSR), 9 December 1948, UN General Assembly, summary records
The delegation of the USSR could not accept article 20, which did nothing to solve the question. Complete freedom to disseminate ideas did not solve the problem of freedom of expression. There were dangerous ideas the diffusion of which should be prevented, war-mongering and fascist ideas for instance... It was no use to argue that ideas should only be opposed by other ideas; ideas had not stopped Hitler making war... That article also made no provision for the free dissemination of just and lofty ideas. If freedom of expression was to be effective, the workers must have the means of voicing their opinions, and for that they must have at their disposal printing presses and newspapers. The USSR delegation had proposed that the article should be amended so as to give the workers the material means by which they could express themselves, but the USSR amendment had been rejected on the pleas that it might permit the State to restrict freedom of expression. For its part, the delegation of the USSR considered that the rejection of that amendment constituted an attempt to prevent the masses of the people from obtaining the means of expression which would make them independent of the capitalist or official Press.
Mr Davies (UK), 10 December 1948, UN General Assembly, summary records
Mention had been made of territories in which all rights were disregarded. Such territories should not be sought among British territories, which were largely self-governing, but rather among the totalitarian States of Eastern Europe, where there was no freedom of the Press except for supporters of the Government, where justice was subordinated to political requirements, where millions of human beings were held in concentration camps and where the role of parliaments was more and more limited to ratifying the decisions of the party in power... The development of fascism had been due more to the suppression of the freedom of expression than to the dissemination of lies. The fact that political refugees came from the East to the West of Europe proved that the same danger still existed in some countries.
The International Covenants
Following the adoption of the Universal Declaration, the UN's Human Rights Commission began work on a legally binding text in the form of a treaty together with measures for implementation.
Governments had decided that there should be a binding multilateral treaty on human rights to complement the existing Declaration. Due to political disagreements about including all types of rights within one treaty, the General Assembly requested the Commission to draft two separate covenants - one on 'civil and political' rights, and another on 'economic, social and cultural' rights. On 16 December 1966, the General Assembly adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Both came into force in 1976.
The International Covenant on Economic, Social and Cultural Rights covers human rights in areas including education, food, housing, and health care, as well as the right to work and to just and favourable conditions of work. A state that becomes a party to the Covenant agrees to take steps for the progressive realization of Covenant rights to the full extent of that state's available resources.
The International Covenant on Civil and Political Rights safeguards rights such as rights to life, liberty, fair trial, freedom of movement, thought, conscience, peaceful assembly, family, and privacy. It also prohibits slavery; torture; cruel, inhuman, or degrading treatment; and punishment, discrimination, arbitrary arrest, and imprisonment for debt. Both Covenants start with an Article that reads:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
These two Covenants, taken together with the Universal Declaration, are sometimes referred to as the 'International Bill of Rights'.
The ideological and political struggle between the superpowers dominated the international human rights agenda during the 1950s, and the initial post-war momentum that led to the adoption of the Universal Declaration diminished considerably.
However, the human rights impetus at the United Nations gained momentum again in the early 1960s, primarily as a result of decolonization. Most of the African and Asian countries that had been under colonial rule when the UN was founded were now becoming independent. Many of these states had a particular interest in human rights issues as a result of their colonial history. UN membership quickly doubled and, by the mid-1960s, developing countries became the largest voting bloc in the General Assembly. The participation of these states stimulated the human rights activities of the UN and took the international human rights agenda in new directions.
Other human rights treaties adopted at the United Nations
In addition to the so-called 'International Bill of Human Rights', the UN system is the source of a number of other international human rights instruments. The other treaties that are considered 'core' to the human rights system include the International Convention on the Elimination of All Forms of Racial Discrimination, which came into force in 1969 and prohibits:
…any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
The Convention on the Elimination of All Forms of Discrimination against Women is designed to ensure women have equal access to political and public life as well as education, health, and employment. Under this Convention, which entered into force in 1981, states are also obliged:
To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force in 1987. The Convention includes a definition of torture (for the purposes of the Convention), and insists that any party to it undertakes obligations: to take measures to prevent acts of torture in any territory under its jurisdiction; not to return any person to a state where there are substantial grounds for believing that that person would be in danger of being subjected to torture; and to ensure that acts of torture can be prosecuted in the courts of that state even though those acts occurred abroad.
The Convention on the Rights of the Child defines a child as 'every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier'. It seeks to protect children from practices that particularly endanger their welfare, including economic exploitation, trafficking, illicit use of drugs, and all forms of sexual exploitation and abuse. The guiding principles of the Convention are the need to take into account the child's best interests, non-discrimination, and respect for the wishes of the child. The Convention entered into force in 1990 and has become the most widely ratified of all UN human rights treaties. The only UN member states not to have ratified the Convention are Somalia and the United States.
The seventh core human rights treaty is the International Convention on the Protection of the Rights of All Migrant Workers and their Families, which entered into force in 2003. Unfortunately, the states that have accepted obligations under this treaty are mostly states that export migrant workers rather than those that host them. This diminishes the effectiveness and scope of the treaty obligations and means that those states that host migrant workers avoid the reach of this treaty and the prospect of supervision by the monitoring body.
Two new treaties were adopted at the end of 2006. The first is the International Convention on the Rights of Persons with Disabilities. Key rights concern the right to make decisions, the right to marry, the right to have a family, the right to work, and the right to education. States are obliged to refrain from discrimination on grounds of disability and to take measures to eliminate such discrimination by 'any person, organization or private enterprise'.
The second treaty is the International Convention for the Protection of All Persons from Enforced Disappearance. It establishes the prospect of national prosecutions and extraditions for the crime of enforced disappearance. This crime is defined as: the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.