Human rights

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The concept of human rights as the innate entitlement of all human beings found early expression during the American and French revolutionary movements of the late 18th century, but received little further development until the conclusion of World War II. It then acquired the current connotation of a body of entitlements whose realisation is considered to be a universal obligation. This article is about the implementation of that concept of human rights. Doubts have been expressed about its ethical foundations, and about its philosophical consistency, but its emotional impact upon worldwide consciousness is beyond doubt. As a result, it has acquired considerable political importance, and has been embodied in a wide range of generally-accepted international treaty obligations. There have been numerous breaches of those undertakings, and there is widespread disagreement concerning the appropriate international response to such breaches.

Introduction

The nature of the concept

As an ethical concept, the term human rights is not susceptible to precise definition concerning either its content or its scope. The generally-held judgement that torture is wrong does not depend upon agreement concerning the degree of pain or discomfort that it involves; and the ethical purpose of banning it is served if the ban puts an end to what most people consider to be torture. There is widespread agreement concerning many of the practices that are considered to be breaches of human rights, but the disagreements that exist - concerning, for example, abortion, the death penalty and blasphemy - are not held to justify a wholesale rejection of the concept. And, although human rights are generally considered to be innate to their possessors, the fact they can be given effect only by the assent of others, makes them difficult to distinguish from community-granted rights.

The historical background

The 1948 Universal Declaration of Human Rights is generally held to have been inspired by revulsion at the treatment or the victims of the holocaust and by wartime aspirations for a better post-war world. Although much of its content was new, there were precedents for its concept of universally innate human entitlements in the American Declaration of Independence and the French Declaration of the Rights of Man. Its unprecedented feature was its claim to be doubly universal - to invoke the universal acceptance of agreed obligations, as well as the recognition of universal entitlements. It was an overstated claim, however, in view of the absence among it signatories of many of the countries that are now members of the United Nations, and the fact that many of its signatories were themselves in breach of its proposed obligations[1]. The actual content of the declaration was, as Justice Michael Kirby recalls [2] a political compromise, and rights were included that apparently stood little chance of unqualified implementation. Even then, the six communist members, along with South Africa and Saudi Arabia, abstained in the vote.

In the course of the following sixty years the United Nations negotiated the nine United Nations human rights treaties that impose legal obligations upon countries that ratify them to implement the rights that they set out [3]. The treaties specify political, social and cultural rights, the rights of children and migrant workers, the avoidance of racial discrimination and discrimination against women, and the outlawing of torture. Of the 201 member countries, upwards of 150 have ratified all but the three most recent of the treaties (a database of ratifications and reservations is available[4]). Signatories have included countries with poor human rights records (excluding the three most recent, Belarus and Syria have ratified all of the treaties; China has ratified all but the Covenant on Civil and Political Rights; and Cuba and Saudi Arabia have ratified all but the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights).

Respect for human rights was the unifying principle that brought together the countries of the Council of Europe in the 1950s. It was given expression in the European Convention on Human Rights, which encompassed the rights of the Universal Declaration, except for its economic and social rights (which became the subject of the separate European Social Charter). Its unprecedented feature was the creation of a court at which an individual could obtain a remedy against his own government. Europe's example was followed by two further regional conventions. The American Convention on Human Rights was adopted in 1969 with similar provisions. It has been ratified by 24 countries in Central and South America. The African [Banjul] Charter on Human and Peoples' Rights was adopted in 1981 and has been ratified by most African countries.

Philosophical objections

The concept of individual "inalienable" rights met immediate opposition when it was put forward in the American Declaration of Independence and the French Declaration of the Rights of Man. Jeremy Bentham rejected the concept as "nonsense upon stilts", arguing that:[5]

"in proportion as it is right or proper, i.e. advantageous to the society in question, that this or that right—a right to this or that effect—should be established and maintained, in that same proportion it is wrong that it should be abrogated: but that as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished".[5]

Karl Marx rejected the concept of rights that "do not go beyond those of "an individual withdrawn into himself ... and separated from the community", in favour of "species-being rights" that "deal with the individual who is part of his community rather than estranged from it"[6].

There have also been objections on the grounds of cultural relativism to the listing of rights in the Universal Declaration. Among the innate, human rights, it is argued, is the right to adopt a particular culture, and communities with different cultures may be expected to adopt different concepts of human rights.

It has been claimed, for example, that Asian values are less supportive of freedom and more concerned with order and discipline, and that the claims of human rights in the areas of political and civil liberties, therefore, are less relevant and less appropriate in Asia than in the West[7]. In that case, cultural differences in the relationship between individual and collective human rights may be expected to affect the degree to which the Declaration's rights are deemed to be offset by the needs of the community. The Bangkok declaration, for example, argues that "while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds".

It has also been claimed that the Declaration is incompatible with Sharia law [8], and member states of the Organisation of the Islamic Conference agreed in 1990 upon an amended version, the Cairo Declaration on Human Rights in Islam, which stipulated that " all the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia".

Popular opinion

Digests of international public opinion on the Universal Declaration of Human Rights developed by the Council on Foreign Relations indicate majority support for it in more than twenty countries [9]. There was support by majorities averaging 70 percent in all of the countries polled for the proposition that the United Nations should promote the rights that were advocated in the Declaration. In particular, there was majority support in all countries for the principles of non-discrimination, universal suffrage, social security, and for freedom to demonstrate and express opinion. Majorities in most, but not all, nations agree that followers of any religion should be allowed to assemble and practice in their country. There was support, even in China, for the proposition that the United Nations should actively promote human rights in member states.

Implementation

Overview

Implementation has been by the granting of remedies to the victims of an abuse, usually accompanied by measures to prevent its repetition. It has often required an unprecedented willingness on the part of the victims' governments to submit to judgements against them by supranational authorities. Those judgements have been made by interpretations of international agreements that have necessarily been subjective, especially in circumstances that were not envisaged by the agreements. The outcome has been a large body of case law, reference to which is the normal basis of current implementation.

International

Each of the United Nations treaties creates a "treaty body" of independent experts to which ratifying countries are required to submit periodic reports. Treaty bodies also take decisions in response to evidence of human rights violations, and the governments concerned are expected to respond with explanations of how they intend to implement their stipulated remedies. (Some treaty bodies may, under certain conditions, consider petitions from individuals[10].) Compliance with those treaty obligations has, however, been low[11]. The proportion of country reports that are submitted on time has been as low as 16 percent[3], and it has been estimated that 75 percent of the decisions of the treaty bodies are not implemented [12].

Regional

The European Convention on Human Rights differs from the United Nations treaties in its establishment of a court whose decisions are unequivocally binding. A decision of the European Court of Human Rights typically includes, in addition to monetary compensation, an individual remedy designed to restore the applicant to the position that he or she enjoyed prior to the violation, and a general remedy designed to prevent the violation from happening again. Compliance with individual remedies is reported to have been high, but there have been numerous failures to implement the general remedies, and there has been widespread failure to implement the Court's orders to investigate and prosecute gross human rights violations. The Court has developed a doctrine of "margin of appreciation": members of the Council of Europe are allowed to interpret human rights differently within limits to be determined by the Court.

The Inter-American Court on Human Rights is reported to have experienced a 29 percent rate of total implementation of its remedies, a 12 percent rate of partial implementation, and a 59 percent rate of non-implementation. Like the European court, it has experienced a good response to its individual remedies and a poor response to its general remedies. The African Commission on Human and Peoples’ Rights has also experienced low levels of implementation of its remedies[11]

National

A few countries have enabled their courts to give effect to decisions of the United Nations treaty bodies[13], but there is a general perception that their "views" are not legally binding. (It has been argued, however, that states are obliged to give their views serious consideration, and to provide good reasons for not implementing their remedies.[12]). The decisions of the European Court of Human Rights are legally binding and are regularly implemented by most European countries. The exceptions are six countries - Italy, Poland, Romania, the Russian Federation, Turkey, and Ukraine - which together provide for nearly 70% of all applications brought before the Court. They have been accused of being "unable – and in some instances have lacked the political will – to fulfil their duty effectively to remedy violations of the Convention"[14]. Among obstacles to implementation by national courts has been the need for amending legislation to remove a stipulated breach of human rights. It has been argued that to overrule parliamentary legislation for that purpose would be an unacceptable breach of the international law principle of national sovereignty[15] [16] [17]. (That obstacle can be overcome - as in the United Kingdom - by a consistent practice of compliant legislative change that is nominally exercised at the discretion of the country's legislative assembly.)

Outcomes

Performance

There is no available measure of the aggregate human rights improvement that has followed the Universal Declaration, but there are several collections of measures of human rights progress in individual countries. It is evident from studies of the impact of the human rights treaties based on that data, that other causative factors have been at work, including the strength of a country's economy, the health of its civil society, and the degree of its democratic influence. The results suggest that there have been improvements where those other factors are favourable, but little change elsewhere. However it has been suggested that further improvements may result from what has been termed "the socialization of international norms into domestic practices[18], and the experiences of the Arab Spring tend to support that thesis.

Political issues

Since human rights is an ethical concept and thus not susceptible to rational analysis, differences in its interpretation have had to be settled by the political processes by which groups of individuals are induced to accept the social norms of their communities. The Universal Declaration of Human Rights, which was the first attempt to obtain global acceptance of a single set of norms, has been supported by extensive political activity by governments, pressure groups and individuals. Governments of the more prosperous countries have given support by rewards and penalties including economic aid and economic sanctions. There are, nevertheless, many unresolved issues, some of which have given rise to disputes concerning the decisions of the regulators. There have been disagreements concerning blasphemy, homosexuality, sexual equality, adultery, suicide, abortion and euthanasia. Although if has been widely agreed that military intervention can sometimes be justified in order to protect communities from human rights catastrophes such as mass murder, rape and starvation[19], there are unresolved issues concerning the exact circumstances under which such intervention is justified. And, although it is generally agreed that rights may be withdrawn to punish and deter crime, there are unresolved issues concerning the death penalty, prison conditions, and prisoner's voting rights. The overruling by the European Court of Human Rights of thousands of extradition rulings [20] has led to accusations that the Court has been protecting criminals from their just deserts

References

  1. Ignatieff, Michael: Human Rights as Politics and Human Rights as Idolatry (lectures delivered at Princeton University April 4–7, 2000)
  2. Michael Kirby: The Universal Declaration of Human Rights - Fifty Years On (Speech at an UNESCO dinner at Sydney on 5 December 1998)
  3. 3.0 3.1 Navanethem Pillay: Strengthening the United Nations human rights treaty body system, A report by the United Nations High Commissioner for Human Rights, June 2012
  4. Ratifications and Reservations, United Nations Treaty Collection, September 2012
  5. 5.0 5.1 Jeremy Bentham (1843). “Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French revolution”, Sir John Bowring, ed: The works of Jeremy Bentham, 3rd ed. W. Tait, p. 501.  and see also Jeremy Bentham: Anarchical Fallacies, Being an Examination of the Declarations of Rights Issued During the French Revolution, 1843
  6. Karl Marx;: On the Jewish Question, 1844
  7. Nghia Hoang: The 'Asian Values' Perspective of Human Rights: A Challenge to Universal Human Rights. Vietnamese Institute of Human Rights, May 15, 2009
  8. David Littman: Universal Human Rights and "Human Rights in Islam", Midstream (New York) February/March 1999
  9. Polls Find Strong International Consensus on Human Rights, WorldPublicOpinion.org December 7, 2011 (with link to detailed results of 49 opinion polls)
  10. Human Rights Bodies - Complaints Procedures, Office of the United Nations High Commissioner for Human Rights
  11. 11.0 11.1 David C. Baluarte & Christian De Vos: From Judgment to Justice: Implementing International and Regional Human Rights Decisions, Open Society Foundations, November 2010
  12. 12.0 12.1 André Nollkaemper and Rosanne Van Alebeek: The Legal Status Of Decisions by Human Rights Treaty Bodies in National Law, Amsterdam Law School Research Paper No. 2011-02, 2011
  13. See Heli Niemi: National implementation of the findings of the United Nations human rights treaty bodies 2003 for studies of six countries
  14. Guaranteeing the authority and effectiveness of the European Convention on Human Rights, Report of a Council of Europe Committee on Legal Affairs and Human Rights, January 2012
  15. Father Robert Araujo: Sovereignty, Human Rights, and Self-Determination: The Meaning of International Law, Fordham International Law Journal, Volume 24, Issue 5 2000
  16. Predrag Zenović: Human rights enforcement via peremptory norms – a challenge to state sovereignty, Riga Graduate School of Law research paper no 6, 2012
  17. W. Michael Reisman: Sovereignty and Human Rights in Contemporary International Law, Yale Law Faculty Scholarship Series. Paper 872, 1990
  18. Thomas Risse: The Socialization of International Norms into Domestic Practices: Arguing and Strategic Adaptation in the Human Rights Area, (Paper presented at the Ideas, Culture and Political Analysis Workshop, Princeton University, May 15-16 1998 [1])
  19. Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, 2001
  20. Rule 39 Decisions by year, European Court of Human Rights, 2012