Seven decades on, is the Universal Declaration of Human Rights a ‘shining beacon’ or a monument to governmental hypocrisy? Eduardo Reyes reports
THE LOW DOWN
A ‘flash of anger’ at the horrors of the second world war is clearly detectable in the Universal Declaration of Human Rights (UD). But as it reaches 70, what good has it done? Among its signatories are nations with an abominable record on the rights it proclaims – expediency, as ever, drives global politicking. Some even doubt the UD would be passed by the UN general assembly were it presented today, while the ‘rights’ it declares are not bestowed to the world’s citizens as the declaration has no teeth. Arguing against such pessimism is the architecture that has risen on the UD’s foundations – close to 100 international conventions and treaties which do have teeth – and a UN machine that has a chance to work to a higher standard than its political and diplomatic masters would like.
Joseph Stalin was premier of the USSR when the UN general assembly, meeting in Paris, proclaimed the Universal Declaration of Human Rights (UD) – and the idea it could pass seemed far from certain. The Soviet blockade of West Berlin and the Berlin Airlift were in full swing, and when USSR delegates such as deputy foreign minister Andrey Vyshinsky attended sessions, it was to rail against western capitalism. Outside the conference sessions, delegates worried about their route out of Europe were war to break out. In the event, the USSR was one of eight abstentions, but no country voted against. Resolution 217 A (III) passed on 10 December 1948.
Affirming the rights of ‘all members of the human family’ and ‘the equal rights of men and women’, a flash of anger at the horrors of the second world war runs through the UD. But the rights it set out were, in the terrible parlance of modern management-speak, ‘stretch targets’. At 197 countries, almost every nation in the world is now a signatory, including many that have a well-documented, abysmal record on human rights.
Burma, Saudi Arabia, Iran, Syria, Cuba, Sudan, the Democratic Republic of Congo – the current list of signatory countries that routinely breach the human rights set out in the declaration is long, and has always been long. Ten years ago, foreign secretary David Miliband hosted events to mark the UD’s 60th anniversary while the UK remained complicit in rendition and torture.
This raises the question: can the power claimed for the standards set out in the UD survive such humiliations?
Arguments on the UD’s true legacy rest on two points. First, whether the rights set out in the UD can now be said to be ‘justiciable’. Second, to what degree has it provided the moral leverage to improve rights?
‘It’s still the root of the whole [modern] human rights movement,’ chair of the Law Society’s Human Rights Committee, Tony Fisher, says. ‘In itself, it is no use – it provides no mechanism to enforce.’ In the years since, Fisher says: ‘Rights were brought into a framework where they could be enforced more credibly. [At first] concentrating on civil and political rights.’
It has to be a living instrument, not just a sterile document. As a lawyer in a post-conflict society that document, and the institutions and agencies it gives rise to… are all really important
Christopher Stanley, KRW Law
Natalie Samarasinghe, executive director of the United Nations Association-UK, puts the UD in the context of ‘the progressive realisation principle’. This is the belief that ‘progress will have an outcome at some stage’. The UD does not stand alone, she points out: ‘The UD grows out of the Charter, which has seven references to human rights, including an article [establishing] a Commission for Human Rights.’
It was the commission, chaired by Eleanor Roosevelt, that carried out the preparatory work. The original intention, for a binding convention, was dropped however. ‘There was a lot of pushback on that from states concerned more with promotion, not protection, of human rights,’ Samarasinghe notes, while adding: ‘It helps that it’s a document to live up to.’
But the UD is not the only 70th anniversary to be marked this year – in 1948 the Berlin blockade marked the intensification of the Cold War. It was this that preoccupied many delegates at the Paris general assembly. ‘The Universal Declaration of Human Rights shone like a beacon of hope amid the gloom with which the Berlin Blockade had enveloped the general assembly,’ Philippines delegate Narciso Reyes recalled. ‘But it seemed hopelessly out of reach while the Berlin Blockade was a clear and present danger.’
On many fronts ‘progressive realisation’ stalled at the UN. Through the 1950s and 1960s, conventions on race, gender and political rights were passed. But arguably the best progress made to build on the broad principles of the UD was the European Convention on Human Rights (ECHR). Passed in 1950 and in effect from 1953, this was capable of enforcement through the European Court of Human Rights from the latter’s creation in 1959.
The thaw in East-West relations saw global progress on ‘machinery’ to support human rights to the extent that, Dragan Nastic, senior policy and advocacy adviser at Unicef UK, can emphatically say: ‘It paved the way for the adoption of almost 100 global and regional human rights treaties, all containing references to it in their preambles.’
Nastic highlights the 1989 convention on children’s rights: ‘Children’s rights, embedded in the Convention on the Rights of the Child, are an excellent example of the UD’s significance and influence. Firstly, the UD, by recognising “…the inherent dignity and the equal and inalienable rights of all members of the human family”, has recognised children as rights-holders too.’
While the UD includes economic and social rights, in practice these have been harder to assert than civil and political rights, even using the power of conventions that followed. It has seemed stronger on what Nastic terms ‘freedom, justice and peace’.
A TIMELINE OF PROGRESS
- 2 December 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
- 4 November 1950 The European Convention on Human Rights
- 20 December 1952 Convention on the Political Rights of Women
- 7 November 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages
- 21 December 1965 International Convention on the Elimination of All Forms of Racial Discrimination
- 26 November 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
- 18 December 1979 Convention on the Elimination of All Forms of Discrimination against Women
- 10 December 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- 20 November 1989 UN Convention on the Rights of the Child
- 18 December 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
- 9 November 1998 UK Human Rights Act (in force from 2 October 2000)
- 18 December 2002 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- 13 December 2006 Convention on the Rights of Persons with Disabilities
- 20 December 2006 International Convention for the Protection of All Persons from Enforced Disappearance
- 16 June 2011 The UN Guiding Principles on Business and Human Rights (‘Protect, Respect, Remedy’)
‘It may look at first glance that the UD adopted a narrow approach,’ Nastic adds. ‘But we have to bear in mind the historic moment when it was created and central motivation behind it – which was that the horrors of the second world war are never repeated. But the UD does mention that one of the main aspirations is to promote social progress and better standards of life, linking very much civil and political rights with socioeconomic rights, and thus paving the way for the two international covenants in which these two groups of rights have been elaborated in a legally binding way.’
Steve Broach, a barrister at Monckton Chambers who specialises in special needs education cases, explains that the strongest ‘rights’ are phrased ‘negatively’. The rights to ‘life and liberty’ demand that the citizen be ‘left alone’ by governments.
To use human rights arguments in an area that requires resources to be expended is much harder. ‘To defend a right to education in the courts – that’s not as easy,’ Broach says – even in a jurisdiction where the European Convention applies and, in the UK’s case, is now given effect by the Human Rights Act.
That may, though, be slowly changing. The development of children’s rights, combined with the 2006 Convention on the Rights of Persons with Disabilities, has informed some human rights jurisprudence and the interpretation of the European Convention. In R (E) v London Borough of Islington  EWHC 1440 (Admin), an education case in the Administrative Court found for a child’s education rights on convention and Human Rights Act grounds. Permission to appeal was not granted.
For rights like education, ‘it’s quite an exciting time’, says Broach. ‘We’re at the start of a process, not the end.’
Also at an early stage is a project, begun by Kofi Annan as UN secretary general, to apply human rights principles to businesses. His special representative John Ruggie produced the ‘Guiding Principles on Business and Human Rights’ in 2011. Enterprises that commit to the principles are not legally bound to them, but should be able to show how they meet the principles’ aims to ‘protect, respect’, and ‘remedy’.
Some of the most successful and dramatic instances where perpetrators of human rights abuses have been held to account have been international tribunals established to try crimes committed in post-Cold War conflicts. In the case of the Yugoslav tribunal at The Hague (ICTY), 161 indictments were issued and, against early expectations, the tribunal accounted for all of them. Of the 161 people indicted, not one is at liberty, unless the tribunal found them ‘not guilty’ or they have served their sentence.
The Rwanda tribunal is approaching the end of its mandate, having accounted for 90 of its 98 indictments. The Lebanon tribunal’s work is ongoing. The US is among the countries that have not signed up to the Rome Statute, which established the International Criminal Court (the ICC is ‘dead to us’ Donald Trump’s national security adviser has said). Some other governments have an (as yet unrealised) aim of withdrawing from the ICC.
But there is no cause to be overly pessimistic. The record of the tribunals, and the continued existence of the ICC, are important because, as barrister and international jurist Geoffrey Robertson QC has noted, international law develops and sets precedents to a high degree by acts of enforcement rooted in agreed common standards.
The case made for the UD’s reputation at 70 in large part depends on what came next – the treaties, conventions, and regional and national laws and institutions created to realise its principles. But one aspect of the UN’s human rights work is even more closely linked to the declaration itself – and it has attracted controversy.
The declaration would struggle to get through the general assembly today. A lot of countries wish they’d never signed it
Tony Fisher, Law Society Human Rights Committee
The 47-member UN Human Rights Council was established in 2006 as the ‘inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and [making] recommendations on them’.
So far, so good. But with council members being elected by the UN General Assembly, critics say it has included some strange choices – step forward Cuba, Saudi Arabia, China and Russia. Syria and Sudan were being supported as candidates at one point. They were not appointed, but the fact they were even in contention was deemed to be damaging.
On its foundation, Samarasinghe notes, the council was ‘small but squeaky clean’ in its composition. However, she argues: ‘It’s very important to say that this is an intergovernmental body.’
She acknowledges that the council is ‘intensely political’, and that some of its work ‘was unfairly over-focused on Israel’. But she maintains its focus is now more balanced, despite the headlines, with work being done on Burundi, North Korea and Syria. The universal periodic reviews it conducts are applied to all nations and the reviews are seen to carry some force.
Lawyers and civil society groups in Northern Ireland regularly submit human rights concerns to the council’s special rapporteur. Christopher Stanley, consultant at Belfast firm KRW Law, says: ‘The institutions of the UN are important. The special rapporteur intervening is incredibly helpful in exerting political pressure on intransigent parties.’ He cites the case of Marian Price, the ‘Old Bailey bomber’, who was moved from an all-male prison. On a subsequent occasion after falling ill, she was examined by UN doctors (Price had been released on licence, but this was revoked by the secretary of state).
Samarasinghe also notes of the council: ‘It is quicker-acting than the security council or the general assembly.’
Lawyers and campaigners who support human rights say the UD’s anniversary is something to celebrate – not least because they sense its detractors are gaining strength in some quarters.
‘This is a most challenging time for the enforcement of rights,’ Fisher reflects. ‘The Universal Declaration is more relevant than ever.’ The values expressed in the UD, he says, create a ‘political and cultural background’ for the promotion of rights.
During the Cold War, Samarasinghe says, work around promoting the UD’s contents was often limited to ‘norm-setting’. ‘It is still that shining beacon,’ she argues. Among the myths she thinks need to be countered are that it just reflects western values from the northern hemisphere. ‘Even if discussions were not equitable, they were genuinely multilateral,’ she insists. Delegates from Latin America and Asia had a huge impact on its drafting. Human rights representing ‘dignity, fairness and justice,’ she says, are often conflated with political correctness in a way that is unhelpful to human rights: ‘It would be good to disentangle it from political correctness.’
In Stanley’s judgement ‘it has to be a living instrument, not just a sterile document. As a lawyer in a post-conflict society that document, and the institutions and agencies it gives rise to, the role of other [later conventions like] the ECHR, are all really important.’
Could the declaration pass the general assembly today? Opinions vary. ‘It would struggle to get through,’ Fisher concludes. ‘A lot [of countries] wish they’d never signed it.’
Nastic, though, closes on a more upbeat note: ‘Absolutely yes, I have no doubt about it! And I would go even further,’ he adds. ‘In 1948 the UD was adopted by the then 58 members of the United Nations; 48 voted in favour and others abstained or didn’t vote. Today all 193 member states of the UN would vote for it, there would be no abstentions.
‘Although in formal terms, the Universal Declaration was not adopted as a legally binding document, it has always possessed moral and political force, and it can be argued that it has become a part of customary international law.’