50th Anniversary of the Universal Declaration of Human Rights fell on Thursday

For an Asian Human Rights mechanism

By Kishali Pinto Jayawardena

Like all cathedral towns in France, Strasbourg seems to don a special air of sanctity as Christmas draws near. As lightly falling snow covers the city with a blanket of white and garlands of twinkling lights sparkle in every street corner, seasonal festivities are apparent.

This December however, the joyousness appear to be more pronounced. At the Palais de l'Europe, headquarters of the Council of Europe, Gina Estrada, a lawyer working at the Council explains to me why they feel so jubilant this year.

"Of course, we are careful in using the word celebration with relation to the 50th anniversary of the Universal Declaration of Human Rights. We prefer the word commemoration in the context of the long way the world still has to go in realising rights protection for all its peoples. But, the fact remains that 1998 does mark significant achievements in the field of human rights. We feel happy about this, it gives us strength to hope for something better in the years to come."

Estrada has reason to feel happy. Of all the progeny that the Universal Declaration has spawned since its birth in 1948, the European Convention on Human Rights has been rightly hailed as the most visibly successful individual human rights protection mechanism up to date. As British Prime Minister Tony Blair said in a 50th Anniversary Anthology released by the Netherlands Ministry of Foreign Affairs this month, ".....(the Universal Declaration)…was the inspiration for the Convention. The widespread ratification of the Convention has significantly enhanced the protection of human rights on our continent. For over thirty years, people in the United Kingdom have been able to go to Strasbourg to enforce their rights in the Court there. The new Labour Government in Britain is now fulfilling the promise it made to the British people to make the European Convention part of British domestic law. It is one of the principal pillars of our constitutional reform programme to modernize Britain."

Blair's diplomacy, fitting and indeed only to be expected in this anniversary year, comes in the wake of Britain being rapped over the knuckles on many occasions by the European Court for not abiding by human rights obligations imposed on her by the Convention.

Estrada agrees that one of the most spectacular of these remains the Sunday Times case where a decision of the House of Lords restraining the Times newspapers from publishing articles on a pending dispute before court between manufacturers of the thalidomide drug and consumers adversely affected by it was set aside by the European Court. The Court stated that the facts of the case did not cease to be a matter of public interest merely because they formed the background to pending litigation. On the contrary, the families of the numerous victims of the tragedy who are unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions.

In the circumstances, they should not be deprived of this information. It was subsequent to this case that a Contempt of Court Act was enacted in the United Kingdom. The Times case was only one of many where not only the British legislature and its courts, but those equivalent institutions in her neighbour states began to abide by reprimands issued by a supra national body situated outside their domestic boundaries, something unheard of fifty years ago. State sovereignty was clearly giving way…....pursuant to the first wake up call given by the Universal Declaration fifty years ago.

Indeed, the influence of decisions of the European Court and the European Commission could now be said to extend beyond Europe, witness for example, the many instances where the Sri Lankan Supreme Court has cited pronouncements from Strasbourg.

Individual complaints concern an ever broadening range of issues including prisoners rights, access to courts, the right to a fair trial within a reasonable time, telephone tapping, immigration, deportation and extradition, laws on homosexual activities, laws on abortion, freedom of the press, radio and television and trade union activities.

The European Commission has registered and examined over 40,000 individual complaints while the European Court has delivered over 900 judgments since its creation in 1959. And on this, the 50th anniversary of the Declaration, Strasbourg appears to be looking at an even more ambitious future.

A new protocol to the European Convention (entering into force on the 1st of November this year) sets up a single permanent Court instead of the previously two - tiered system. The new European Court will be directly accessible to the individual and its jurisdiction will be compulsory for all contracting parties, including the new East European countries that will claim membership to the Council. The planned structural changes are expected to minimize delays in the existing system.

This then for Europe and its justifiable "celebration" (let us use that word without unnecessary coyness) of the Universal Declaration. America has also no reason to suffer withdrawal symptoms.

The Inter- American system for the protection of human rights poses indeed, a fair challenge to the European system in its activism.

The Inter- American Commission and Court on Human Rights has inquired into widespread human rights violations in countries of the hemisphere and has laid down authoritative pronouncements, specially with regard to practices of torture and disappearances.

What now of Africa? The African Charter on Human and Peoples Rights which has been ratified by all but one of the African states has been an inspiration for constitutional and legal reform in that region. Recognizing that even further measures are needed to protect the rights of the African people, the Organisation of African Unity adopted a protocol to the African Charter on Human and Peoples Rights in 1988 establishing an African Court on Human Rights.

It is to be hoped that when the Protocol is ratified and comes into force, that the Court will also develop a distinctive human rights jurisprudence which may one day achieve as sophisticated a level as its European and Latin American counterparts.

This leaves, of course, Asia. An Asian Charter on Human Rights has been in the making for the last three years, its completion seems however to be a dream more distant than most dreams. The initiative has been taken mostly by interested NGO's, with support being minimal from the states.

A parallel effort to establish an ASEAN human rights mechanism is also underway, following the 1993 Vienna conference on Human Rights that reiterated the need to "consider the possibility of establishing regional and sub regional arrangements for the protection and promotion of human rights, where they do not already exist" The ASEAN effort, though marginally more optimistic than other endeavours is however also hitting various snags in its journey towards the formulation of an ASEAN Convention on Human Rights.

So, it seems that Asia has little reason to rejoice in 1998. As arguments abound about the diversity of the Asian countries, the impossibility of having a single judicial supervisory mechanism with regard to the entirety of Asia, cultural relativism vis a vis the universality of human rights, they seem hollow in their very repetition.

For those too obstinate to admit it, the reality has to be faced. Human rights has ceased to be a matter of domestic concern. The future will inevitably see a further regression of state sovereignty in this respect.

That Asia should evolve a uniquely Asian mechanism for dealing with issues that the new order will throw up, instead of merely pledging a reluctant and often hypocritical allegiance to international mechanisms in Geneva and New York remains but a self evident need.

Sharing a scary thought

By Dr. Deepika Udagama

Fifty years ago on December 10, 1948, a unique event took place in the UN General Assembly that forever altered the manner in which states could treat their people. The event was the adoption of the Universal Declaration of Human Rights (UDHR) which, for the first time in human history, proclaimed a comprehensive set of international human rights standards. Those standards were proclaimed "as a common standard of achievement for all peoples and all nations".

In a sense, what was proclaimed was a simple truth, but a profound truth - that all human beings anywhere in the world, whatever their race, sex, religious or political beliefs or any other distinction they may be subjected to, are born equal in dignity and are therefore equally entitled to the rights that are ours by virtue of being born a human being. However, given the proclivity of human beings to emphasize divisions than commonalities, and given the tendency on the part of politicians to benefit from these divisions, the adoption of the UDHR as a common ideal, transcending all those difficulties, is an astounding achievement for all of humankind.

A singular triumph for human dignity and the death knell of despots. General Pinochet surely must be regretting the day the UDHR came into being, for he would not be facing his current predicament if not for the new world order spawned by the UDHR and its progeny.

The UN Charter, adopted at the San Francisco Conference in 1945, paved the way for the adoption of the UDHR. Until the creation of the UN, the manner in which states treated their people, however inhumane, was considered to be very much a national matter. Therefore, it was not thought fit for the international community to intervene in such instances. But the atrocities committed during World War II, changed all of that.

The Charter, revolutionizing existing principles of international law, proclaimed the universal promotion of human rights for all as one of the UN's major goals. Further, it imposed a legal obligation on all member states to promote universal respect for human rights individually and in co-operation with the organization. The UDHR was adopted to give expression to universally accepted human rights standards. Today it is so widely respected in the world, it has literally become the human rights "Bible". A large number of constitutions, including the 1978 Constitution of Sri Lanka, have adopted its provisions.

I for one believe that every person must possess a copy of this magnificent document. The UDHR is a slim document containing only 30 articles in all, written in extremely lucid, nonlegalistic language. This is part of the elegance of this historic document. I am moved each time I read its Preamble, especially the following paragraph:

"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law...."

Could there be a more profound political truth than that? In what better way can one encapsulate in a single sentence the agonies of those who throughout human history yearned and fought for human freedom and dignity? We are forever in their debt for the freedoms we enjoy today.

Article 1 declares the cornerstone of the UDHR, that all human beings are born free and equal in dignity and rights. Then it goes on to declare the right to life, liberty and security of the person; freedom from slavery and servitude; freedom from torture or cruel, inhuman or degrading treatment or punishment; equality before the law and equal protection of the law; the right to an effective remedy for violation of a fundamental right; freedom from arbitrary arrest, detention or exile; the right to a fair and public hearing; the right to be presumed innocent until proved guilty; freedom from retroactive penal laws; the right to privacy, family, home or correspondence; freedom of movement; the right to leave and return to one's own country; the right to seek asylum from persecution; the right to a nationality; the right of marriage; right to own property; freedom of thought, conscience and religion; freedom of opinion and expression; right to assembly and association; the right to participate in government and to elect one's representatives at free and fair elections.

What is even more remarkable about the UDHR is the proclamation of economic, social and cultural rights, in addition to the above mentioned civil and political right, as universal human rights. It proclaims the right to social security; the right to work and to just and favourable conditions of work; the right to equal pay for equal work; the right to form and join trade unions; the right to leisure (which we in Sri Lanka have in abundance); right to adequate food, clothing, shelter and social services; the right to education and the right to participate in cultural life. Having said that, the UDHR also emphasizes that "everyone has duties to the community in which alone the free and full development of his personality is possible." Rights and freedoms could be limited, but only to the extent determined by law "solely for the purpose of" securing the rights of others, meeting the just requirements of morality, public order and the general welfare in a democratic society. It is this balanced and farsighted vision encapsulated in the UDHR that has endured over past 50 years with increasing strength. Eleanor Roosevelt, then First Lady of the US, chaired the body that drafted the UDHR. No tribute to the document would be complete without acknowledging and saluting her tireless efforts at reaching consensus among the drafters representing various regions and cultures around the world. Consensus was reached within just two years, a feat unthinkable today. Another major contributor was Rene Cassin, a Frenchman with a deep commitment to social justice.

One of human right arguments against universalization is that powerful countries use the concept of universal human rights to penalize weaker countries. This I agree is very true. There is also the reality that powerful countries get away with violations of human rights, whereas weaker countries are punished. True again. But then why throw the baby with the bath water? Just because powerful countries get away with blue murder, why should we tolerate torture, enforced disappearances, extra-judicial executions and the like in our own countries? In fact, the analysis should be the converse. Because of the impunity of powerful countries, people living in those countries have little recourse to international protection. We, living in weaker countries on the other hand, have a better chance of protecting our rights because of international scrutiny. This was made amply clear in the aftermath of the 1987-90 "Bheeshana Samaya" in Sri Lanka when the government was under international pressure to improve its human rights record. The pressure did work to a great extent.

It is so appropriate that the Statute of the International Criminal Court (ICC) was adopted and the House of Lords' judgment in the Pinochet case was delivered when we are celebrating the birth of the UDHR. Those developments are nothing but direct results of the global acceptance of universal human rights standards. Under the ICC Statute, the International Criminal Court is empowered to try and punish persons suspected of having committed genocide, war crimes and crimes against humanity (egregious and systematic violations of human rights). In the Pinochet judgment, a majority of Law Lords in the House of Lords held that any country could try a person suspected of having committed crimes against humanity and that even a head of state could not hide behind the plea of sovereign immunity. Pinochet stands accused of presiding over murder, torture and the enforced disappearances of his political opponents.

It is because of the above reasons that I say that the world without the UDHR and its universal message of human dignity is a scary thought. If not for universalization of human rights our governments could treat us as they please with impunity. They could justify any inhumane act on the basis of cultural relativism. I shudder to think of the lot of women, minorities of all types and other vulnerable groups in such a political order. If things are bad enough with universalization, think of what it could be without it?

The writer is the Alternate Member from Sri Lanka to the UN Sub-Commission on Minorities; Senior Lecturer in Law, University of Colombo.

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