Freeland, Steven --- "Human Rights an international perspective" [2008] ALRS 15

Last Updated: 25 July 2010

Human Rights – An International Perspective

Prof Steven Freeland, School of Law, University of Western Sydney

This year marks the 60th anniversary of what is widely regarded as the event that gave rise to the ‘birth’ of modern international human rights law – the finalization of the Universal Declaration of Human Rights (UDHR). On 10 December 1948, the anniversary of which is now celebrated as International Human Rights Day, the United Nations General Assembly adopted without dissent Resolution 217 A (III), to rapturous applause and a real sense that something remarkable had been achieved. Following the adoption of the resolution, the General Assembly called upon all Member States to publicize the text of the UDHR and ‘to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.’

The UDHR, which rose from the ashes of the Second World War, remains one of the most important documents ever been created by humankind. This is, of course, not to say that humans did not have rights before that time – by their very nature, human rights stem from the dignity of the individual him/herself. Even as far back as early civilisation, the codes of Hammurabi and the Ten Commandments set out certain standards of behaviour. More recently, important national documents, such as the 1776 American Declaration of Independence and the 1789 French Declaration on the Rights of Man, stressed that all ‘men’ (human beings) are created equal.

However, as was tragically demonstrated during the two World Wars of the 20th century, and in many other conflicts, the rights of the individual, at least from a political perspective, have often not been respected at all. This has been for many reasons, one of which was the fact that there existed no globally agreed declaration of precisely what these rights encompassed.

The UDHR was negotiated to fill this very significant gap. It was no longer acceptable that States could act in a way that disregarded even the very core of those rights of the individuals within their jurisdiction to survive and live a dignified existence. There was an overwhelming moral and political imperative to emphasize the very essence of basic individual freedoms. The UDHR thus represented the first clear statement of the fundamental rights of the individual in a widely accepted international expression of agreement. It has since become what the Guinness Book of Records has described as the world’s ‘Most Translated Document’.

In strict international law theory, resolutions of the United Nations General Assembly are not binding as a ‘source’ of law, even if they are expressed as a definitive statement of principles. Nevertheless, the adoption of the UDHR had a very strong prescriptive effect. However, in order to create a binding legal regime, the United Nations Economic and Social Council (ECOSOC) asked the Human Rights Commission to draft, in the form of a comprehensive treaty, the principles contained in the UDHR. The intention was that all States would then commit as parties to that treaty, thus being bound legally (rather than just morally).

Almost immediately, however, the complexity of the task became evident. Despite the overwhelming approval of the UDHR as a General Assembly resolution, when it came to transforming these principles into a legally binding form, stark differences of opinion quickly emerged. Indeed, even in the General Assembly debates that immediately followed the adoption of the UDHR, some States emphasized that although the principles were important, they were to a certain degree ‘aspirational’ and non-binding. The major powers were concerned that these principles would undermine their authority and unacceptably compromise what was then regarded as the hallmark of sovereignty – virtual (if not complete) autonomy in relation to internal matters, which included the treatment by the State of those persons living within its territorial jurisdiction.

On the other hand, the developing countries – and there were many that would emerge as a result of the colonisation process established under the United Nations Charter – argued that to ‘impose’ upon them the obligation to guarantee for their citizens certain so-called ‘economic rights’ would prove an impossibility and would, in any event, hamper their industrial and economic development. Moreover, many of these countries regarded the standards that were established as simply representing a ‘western’ view of cultural and societal norms.

Thus was born what has been referred to as the ‘divorce’ of human rights – a ‘reconciliation’ was only possible many years later during the 1990s. What was originally intended to be an all-embracing single treaty was split into two separate instruments – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Arguments emerged about a ‘prioritization’ of human rights. Other referred to these as the ‘first generation’ and ‘second generation’ of rights, as if humans were only entitled to be ‘drip fed’ their basic entitlements depending upon the economic and political circumstances of the State in which they lived.

The development of a legal framework of international human rights standards had thus quickly become a highly sensitive and politicised undertaking. All States agreed that something had to be done – the horrors of the Second World War and countless other tragic events could no longer be ignored. Yet, the conversion of a statement of principles into a legally binding set of rules represented, at least to some States, an infringement on their State sovereignty that was perhaps a little difficult to accept, at least at the time. Indeed, it took a further 18 years (1966) until these ‘twin covenants’ were finalised and another 10 years (1976) until they actually came into force – 28 years after the UDHR had been overwhelmingly endorsed.

Taken together, the UDHR, ICCPR and ICESCR are referred to as the ‘International Bill of Rights’. They establish a framework of rights to which all humans are entitled. The twin covenants have been adopted by the majority of States, although they still face some resistance. Singapore, as an example, is not a party to either of them, a situation that had some relevance during the failed attempts by Australia (and the broader civil society) to stop the execution of Nguyen Tuong Van for drug related offences in late 2005. Cuba announced only in February of this year that it would sign the twin covenants – as recently as 2001, Fidel Castro had labelled them as ‘a pretext for imperialism’ designed to weaken the political and social power of governments such as his (Cuba’s decision to sign the treaties came only after Fidel Castro had officially stepped down as the country’s President).

Following on from the finalization of the twin covenants, there have been a wide variety of other important human rights treaties that have entered into force and which build upon and emphasize specific aspects of these fundamental rights. These include treaties dealing with the Prohibition of Torture, the Rights of the Child, the Elimination of Racial Discrimination and the Elimination of Discrimination Against Women. We have also seen several optional Protocols attached to some of the human rights treaties, allowing for further ‘upgrading’ of the rights sought to be protected as well as making the principles even more relevant to contemporary events.

In September 2007, the United Nations General Assembly adopted by majority a Declaration on the Rights of Indigenous Peoples, which may eventually also be transformed into a legally binding treaty. Australia, New Zealand, Canada and the United States were the only countries to oppose the Declaration, although the change of Government in Australia and the landmark apology delivered by Prime Minister Rudd indicate that Australia may have a different attitude now. This Declaration illustrates the potential for the concept of international human rights to be extended beyond ‘individual’ rights to also encompass a ‘third generation’ of human rights – the concept of ‘collective’ human rights. On this basis, many people have argued for the recognition of other such collective rights such as the ‘right to a clean environment’, ‘intergenerational rights’ and even a ‘right to peace’. Although this form of ‘rights’ does not fit within the traditional viewpoint of human rights – which remains focused on the individual – it does demonstrate the momentum that has been generated by the human rights movement that was awakened by the UDHR.

Other positive developments have emerged. Following the March 2004 annual meeting of the National People’s Congress in China, the country’s Parliament formally approved 13 constitutional amendments, including some that addressed for the first time issues of private property ownership and human rights, thus representing a radical change to the underlying legal framework that had regulated life in China. In addition, a well developed regional system of human rights protection, reinforced with appropriately structured judicial enforcement mechanisms, has been established in the European, American and African regions. There is also an Arab Charter on Human Rights (albeit with minimal ratifications thus far).

Moreover, there has also emerged, particularly over the past 15 years, a system of international criminal justice mechanisms that deal with those individuals who are charged with having committed gross violations of human rights – the ‘international crimes’ of genocide, crimes against humanity and war crimes. This has culminated (thus far) with the establishment of the world’s first permanent international criminal tribunal, the International Criminal Court, which was established by way of a treaty (currently with 105 State parties) and is now beginning its judicial work in earnest, with three accused currently in custody. The international criminal law jurisprudence that has already emerged from this Court and the United Nations established ad hoc Tribunals and hybrid Courts dealing with situations in the Former Yugoslavia, Rwanda, Sierra Leone, Cambodia, East Timor and (from 2009) Lebanon has strengthened the resolve of the international community to prosecute those persons who commit such crimes in flagrant disregard for the most fundamental of individual human rights.

Human rights issues are highly relevant with regard to virtually every aspect of international, regional, national, local and community activities. At the international level, there is, for example, much consideration of the relationship between trade and human rights. Increasingly the ‘fair trade’ movement has altered the purchasing patterns of consumers in industrialised countries, with a concomitant effect on international trade relationships. The agreements establishing the World Trade Organisation contain several mechanisms that are designed to encourage the trading activities of developing countries in a way that promotes the standard of living in those countries. The political difficulties that this brings are, unfortunately, also evident, as the negotiators seem to lurch between one set of crisis talks to another in the hope of finally achieving consensus and concluding the Doha Round of Trade talks.

Human rights are obviously closely related to international humanitarian law – the laws of war - as well as international environmental law, the international regulation of the internet, the use of outer space to provide improved telecommunications services to all humankind, the international law of the sea and fishing rights, intellectual property law - particularly the protection of ‘local’ expertise, but also the rights of developing countries to have affordable access to medication that could reduce the risk of disease – and many other areas. Indeed, it would be impossible to properly consider the consequences of any action of an international nature without at least taking account of the human rights aspects.

Sometimes, of course, that is not enough. During the construction of the Three Gorges Dam in China, a World Bank official (in)famously noted that the project necessitated the relocation of only two million people from their homes. There are obvious dangers in this carefree approach to the fundamental rights of so many people.

Indeed, it is statements like this that clearly demonstrate the need for all of us to understand the nature of these rights and realise why they must be recognized for what they truly are – minimum human rights standards applicable to every human being. Despite the importance of codifying these standards into binding human rights instruments, there is now emerging the risk of what some have called ‘human rights treaty fatigue’ – where the proliferation of an increasing number of multilateral documents dealing with different aspects of what should be regarded as a ‘holistic’ package of basic rights may dilute one’s appreciation of the need to protect all of these fundamental rights, rather than just focusing on what may be in the consciousness of contemporary international discussion.

With each new treaty that is established comes debate, compromise, vague language (the ‘language of the lowest common denominator’) and political opposition. Despite, or perhaps because of the undoubted trend towards a globalisation of many aspects of international relations, States will continue to protect their sovereignty and any threats (real or perceived) to their cultural and political integrity. The spectre of cultural relativism still looms large in human rights discussions, and has often been used to justify practices such as forced marriages in India and female genital mutilation in Africa (and there are many more examples).

This has also led to the ‘leave well enough alone’ approach to human rights issues that has, until very recently, been evident in the Asia-Pacific region, where sensitive issues involving the violation of human rights, even involving the possible commission of international crimes, have usually been dealt with through the language of diplomatic nicety. As an indication of the ‘sovereign’ approach to human rights that has prevailed in this region, in 1993, a group of Asian countries concluded the Bangkok Governmental Declaration on Human Rights, in which they emphasised the importance of the

‘...principles of respect for national sovereignty and territorial integrity as well as non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure’ (emphasis added).

Despite the ever increasing regional trade links, this cooperation has not yet led to a marked change on issues involving human rights and international criminal justice in the Asia–Pacific region, particularly in many of the Asian countries. In recent history, we have seen reports and allegations of very serious violations of human rights in places such as Timor–Leste, Thailand and Burma. Very little has been done in response to these reports. There has, of course, been much discussion on a regional and international basis; sadly, however, there has been a lack of tangible action in order to address these allegations in an effective manner, let alone by way of any legal processes designed to ensure the protection of fundamental human rights.

In early 2006, a significant political controversy arose between Australia and Indonesia, stemming from a decision by Australian immigration officials to grant temporary protection visas to 42 West Papuans, who claimed that they were seeking refuge from a ‘genocide’ taking place in their home province. To its credit, Australia accepted its responsibilities under the Refugees Convention in the face of Indonesian protests. However, having done so, the Australian Government went out of its way to assure Indonesia that it would not investigate further any of the claims of genocide made by the West Papuans, despite the general obligations incumbent upon it, and all countries, under the Genocide Convention. In reacting to the political difficulties that ensued, the priority for Australia was to shore up its relationship with Indonesia, with discussion at the political level focusing very much on the need for mutual respect for the sovereignty of each country. As a result, a consideration by Australia of the underlying allegations of gross human rights violations raised by those seeking asylum would, it appears, have been considered (on both sides) as an undue interference in the internal affairs and territorial integrity of Indonesia. This reflects a broader regional approach to human rights violations, even where a State might have been involved in the commission of a serious international crime.

Of course, if one casts one's mind back a little further, the details of what exactly transpired in Tiananmen Square in June 1989 have still not been made public. Similarly, the deaths of millions of people in the so-called ‘killing fields’ of Cambodia during the period of Khmer Rouge control in the 1970s are only now beginning to be properly addressed.

More broadly, the response of States to the events of 11 September 2001, and the conduct of the so-called ‘war on terror’ represent another threat to some of the fundamental rights of the individual. Obviously, indiscriminate attacks on innocent people are themselves violations of human rights and must be properly addressed through appropriate legal means. States are rightly conscious of the need to protect the security of those within their territorial jurisdiction and to maintain stability within their borders. Yet, under the guise of ‘national security’ – a difficult concept to define properly and an even more difficult one to challenge in a Court of law – Governments around the world have been winding back important basic human rights. Many countries now allow for persons to be lawfully detained without charge for long periods. Freedoms of the press have been restricted as have the rights to information and to freely express oneself or practice one’s religious beliefs. Most countries are tightening their immigration policies and restricting the ability of people who are seeking to escape persecution in their home country from seeking asylum – witness, for example, the ‘fortress Europe’ phenomena.

Acts of torture, arbitrary detention, extra-judicial killing, instances of slavery and corrupt legal processes are, alarmingly, still taking place on a regular basis in many places. The death penalty is still ‘legal’ on the statute books of about 70 countries of the world, although it is true that many of those do not carry out those sentences. Acts of genocide and crimes against humanity continue to take place despite the ‘never again’ rhetoric of the international community following the horrors of the Second World War. Indeed, the first genocide of the 21st century continues to unfold in Darfur, despite the condemnation of civil society and the frequent debates held by the United Nations and other intergovernmental organisations.

Even the important reforms of the international Human Rights system have not (yet) proven to change some well-entrenched political positions. The recent establishment of the United Nations Human Rights Council, to replace the largely inefficient and highly politicized Human Rights Commission, was heralded at the time as a major step forward in the protection of international human rights standards. Alas, despite some positive initial indications, it appears that the new body continues to operate with many of the destructive political characteristics that plagued its predecessor.

Thus, from an international perspective, the report card on human rights can only be described as ‘mixed’. Obviously, there have been tremendous advances since 1945 in the codification and recognition of international legal rules framed in terms of the protection of individual human rights. Human rights considerations are constantly being raised in relation to many actions contemplated by decision makers at all levels of Government, as well as within the broader international community. Various national, regional and international Courts, Tribunals, United Nations agencies, Treaty bodies and other relevant entities have been established to monitor, promote and protect human rights and address situations where those rights have been violated.

Yet, as we reflect on the UDHR in this anniversary year, one can only wonder as to how many people have read it – I don’t mean in a cursory way (although that would be better than not at all) – but really read it. It is one thing to look at the provisions in isolation and from the comfort of our secure lives in Australia and think that everyone can sleep well at night knowing that these principles exist. It is altogether another thing to understand how deeply fundamental these rights are and how they must be jealously guarded so as to retain the essence of human dignity and preserve the ‘humanity’ of international society.