The Universal Declaration of Human Rights - Fifty Years On
: 05 December 1998
: The Hon Justice Michael Kirby AC CMG Justice of the High Court of Australia
: Human Rights
: Australian National Commission for UNESCO
AUSTRALIAN NATIONAL COMMISSION FOR UNESCO DINNER, AGSM SYDNEY, 5 DECEMBER 1998
The Hon Justice Michael Kirby AC CMG*
FIFTY YEARS ON
In the middle of the nineteenth century, the European powers, revolted by the excesses of war, began the slow and imperfect process of framing rules of war which would prohibit excess and oblige humane treatment of the wounded. Yet during the last century, and for much of this, the movement towards human rights was "spasmodic and unorganised".
It took the triple horrors of the Second World War, the Holocaust and the flash brighter than a thousands suns at Hiroshima to propel our species, and its leaders, into action. The story begins in January 1941 when President F D Roosevelt of the United States sketched his vision for the post-war world. It would be a world which guaranteed freedom of speech, of worship, from want and fear. For many Americans who supported these ideals, they were not goals for attainment in a distant millennium but quickly, as an insurance against repeated wars. Roosevelt's aspirations were adopted in August 1941 in the Atlantic Charter
. Britain and the United States left them open to ratification by other nations. They make a point, sometimes overlooked, that the Western powers, and not simply the socialist countries, were committed to human welfare as an integral aspect of human rights.
In January 1942, the United Nations,
being the Allies ranged against the Axis powers, included amongst their war objectives the preservation of human rights and justice in their own lands as well as in all lands. As the tide of the war turned, the meeting of the United States, the United Kingdom, the Soviet Union and China at Dunbarton Oaks in 1944 agreed to establish an international system for peace and security, one purpose of which would be the protection of human rights. At first it was expected that the Charter
of the proposed new world body would itself include a Bill of Rights. However, that idea was abandoned by the United States in 1944. To the great regret of many closely involved in its drafting, the Charter
omitted a statement of fundamental rights as a precondition to membership of the United Nations. But it included, as one of the purposes of the new body, the promotion and encouragement of respect for human rights and for fundamental freedoms for all without discrimination. Picking up amendments which, ironically, were proposed by General Smuts of South Africa, the Charter
recognised specifically that international peace and security were interdependent with protection of human rights and economic progress.
At the San Francisco conference in 1945, President Truman promised that an international Bill of Rights would be drawn up. The General Assembly of the United Nations quickly established a Third Committee on Social, Human and Cultural Affairs and committed to it and, in 1946, to the Economic and Social Council (ECOSOC), the question of whether an international instrument should be adopted on that topic and in what terms. New impetus was given to the idea by the revelations, before the International War Crimes Tribunals, of the horrors which had been perpetrated by the defeated powers. Amongst the most gruesome evidence before these bodies was that of harmful and involuntary experimentation performed by doctors in the name of a distorted notion of public health. In January 1947, the Commission on Human Rights, established by ECOSOC therefore undertook the preparation of a global human rights instrument as its principal task. Mrs Eleanor Roosevelt, widow of the late President, was elected chairman of the Committee. The bureau worked on drafts prepared by its officers and by the Government of the United Kingdom.
Contemporaneous with these developments was the establishment by the United Nations in July 1946 of WHO, whose Charter
came into force in April 1948 with the deposit of the necessary ratifications. Yet for much of its life, WHO was to be relatively isolated from the world movement of human rights law which was going on around it.
It was in September 1948 that Mrs Roosevelt submitted the draft of the Universal Declaration
to the General Assembly. That body referred the draft to the Third Committee which undertook 81 meetings, considering 168 amendments before the final text was submitted. It is interesting to observe the debates which surrounded the content of the Universal Declaration.
The Chinese delegate declared that the task of the drafters was to reconcile Confucius with Thomas Aquinas. Already the "Cold War" was poisoning the relations of the victorious Allies. The Soviet delegate, Andre Vyshinsky, declared that civil rights were fully practised in the Soviet Union and what was needed was the inclusion of socialist proposals - to provide against discrimination; to permit rebellion against autocracy; to ensure self-determination of colonial peoples; to uphold workers' rights to engage in street demonstrations; and to limit the enjoyment of civil rights where necessary to prevent the re-emergence of Fascism.
It was no easy task to marry the objectives of the Western countries, including my own, to ensure the universal protection of civil rights with the objectives of the socialist block, and other countries, to reflect concerns about social and economic rights. The world was fortunate, fifty years ago, that the Chairman of the Committee was Mrs Roosevelt. She could draw upon her husband's programme of social rights in the United States to find empathy with the notion that such matters should find their way into the Declaration
. Many saw it, perhaps she did herself, as a way of achieving on the global stage FDR's ideals about social equity in the United States.
The proposal that reference should be made in the Universal Declaration
to a right to health was put to the Drafting Committee by Mr Amado of Panama. As recorded, this was the way in which he said the matter should be dealt with:
"The State has a duty to maintain, or to ensure that there are maintained, comprehensive arrangements for the promotion of health, for the prevention of sickness and accident, and for the provision of medical care and of compensation for loss of livelihood".
Gradually the idea of including such notions gained acceptance. So it was that on 10 December 1948, the Universal Declaration of Human Rights
was adopted by the General Assembly. In the chair was Dr H V Evatt, President of the Assembly and chief delegate for Australia. A past Justice of the High Court of Australia he had left judicial office to serve as Attorney-General and Foreign Minister in the Curtin and Chifley Governments. His niece, Justice Elizabeth Evatt, one of our most distinguished citizens, serves as a member of the United Nations Human Rights Committee.
The struggle to express international human rights norms, did not conclude with the hortatory words of the Universal Declaration.
was followed by regional conventions in Europe, the Americas and Africa, establishing, as each one of them does, machinery for individual complaints and for the determination of allegations that the signatory nations have not complied with their duties. In due course, the aspiration of an International Bill of Rights was taken further by the adoption of the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights
in December 1966. These Covenants
moved beyond the expression of ideals and principles into legal obligations which are assumed by the States that become parties to them.
Since the celebration a decade ago of the 40th anniversary of the Universal Declaration,
the debate about its impact and its importance has been refocussed. The collapse of the Soviet Union has brought within the potential scrutiny of human rights courts and committees a large number of nation states previously excluded. In Vienna, the World Conference on Human Rights in 1993 emphasised (contrary to the suggestions of some delegates) the universal character of human rights and that there was no exception for "Asian values" or for cultural derogations in Africa, Latin America or elsewhere. Those who have studied the record of the drafting of the Universal Declaration
now call to notice the large part played in its formulation by delegates from countries in what is now known as the Third World.
Asian leaders rightly insist on the interdependence of economic, social and cultural rights and civil and political rights. Many Asian commentators point out, fairly, that perceptions of the precise content of human rights change over time. The notion of universal political suffrage did not extend in Western countries to women or to some ethnic minorities until quite recently. The recognition of the rights of homosexual and bisexual citizens to be removed from the danger of criminal prosecution for consenting adult sexual conduct in private is also relatively new. In this sense, the voyage of discovery which the Universal Declaration
initiated is far from complete. With each new decade, new insights are gained and shared.
THE UNIVERSAL DECLARATION: A REPORT CARD
The last observation invites, fifty years on, a report card on the general achievements of the Universal Declaration.
First, let me acknowledge some weaknesses of the Declaration
which we should candidly admit:
1. The Declaration fell short of providing an enforceable Bill of Rights for the United Nations. Although Mr Gorbachev, at the 40th anniversary celebrations, suggested enlarging the jurisdiction of the International Court of Justice to deal with serious human rights infractions, this has not happened. The Universal Declaration, as such, does not have the force of a binding treaty. The Charter of the United Nations does not contain a statement of universal goals as the price of membership of the world organisation.
2. No actual remedies are provided by the Universal Declaration. There is no right of petition and no entitlement for victims to give content to their aspirations by forcing offenders before a global court or committee. There are no economic sanctions for those who persistently abuse or ignore the obligation, for example, to ensure the right to basic medical care for all.
3. There are still nagging doubts as to whether all of the rights contained in the Declaration can apply in societies with pitifully small resources. Even in those with resources, there remain impediments of culture, politics and religion which undermine the effectiveness of the concepts which the Declaration expresses. The Declaration now appears, in some respects, a little out of date, reflecting, as it does, the controversies of 1948 rather than 1998. For example, in many Western countries, at least, the notion that it is necessary to provide for equal social protection for children "whether born in or out of wedlock" is so self-evident that it scarcely need mention. Not so in every society. The "right to marry" incorporated in the Declaration would, in today's world, in many Western countries, invite consideration of marriage or marriage-like relationships for homosexual citizens - an issue upon which the Declaration is totally silent.
4. The Declaration does not recognise the right of downtrodden people to rise against tyrannous or neglectful national governments. Doubtless this is because, to be accepted, it needed the vote of not a few such governments. Governments which voted for the Declaration and propose its virtues today are often the worst offenders against human rights.
5. The Declaration did not foresee the many new problems for human rights which have come along in the past fifty years: such as the rights of people living with HIV/AIDS, the huge problems of health and poverty associated with world's great population increase, the staggering debt burdens of most countries of the Third World and so on.
6. The mechanisms established to implement the right to health are not only absent from the Declaration. They are distinctly weak in the equivalent provisions of the Economic, Social and Cultural Covenant. That right, as expressed, is truly one of imperfect obligation.
7. The dichotomy between East and West may have been partly resolved in the past decade. The drafters of the Declaration may have included leaders of the world community as it then stood. But necessarily, this was before decolonisation and the huge expansion of the United Nations from 58 member countries, in 1948, to more than 180 now. Perhaps the priorities of the 180 might include some which would be distinct from those of the victorious Allies in the rather different world after the Second World War.
8. The misuse of human rights, including those enshrined in the Universal Declaration, continues when it suits nation states. The appeal of the Soviet Union to the protection of workers rights to justify its invasion of Hungary and the appeal of the United States to democratic rights to justify its incursions in Vietnam illustrate the fact that the power equations, which all nations recognise, lie all too often in the rhetoric of human rights. In practice rights can quite easily be neglected.
9. In particular fields such as health rights, the relevant United Nations agency: the World Health Organisation (WHO) has historically demonstrated an ambivalence about defining health in terms of a human right. On the other hand, other agencies such as UNESCO, UNDP and the International Labour Organisation (ILO) have been active in the pursuit of human rights within the fields of their competence. There is evidence of a new commitment of WHO to this endeavour with lessons learnt from HIV/AIDS. But human rights should permeate the United Nations organisation and influence its activities.
Conceding all the failings and weaknesses of the Universal Declaration,
as viewed with the perspective of half a century, it is still entirely appropriate to celebrate its anniversary. It remains a lodestar for humanity after a particularly dark age:
So what are its strengths?
1. The Declaration speaks in down-to-earth unexcited language of 1948 about the aspirations of all the people of the earth. Mrs Roosevelt has been proved right in her prediction that it would become "the Magna Carta of mankind".
2. The fact that the Declaration aspires to collect the fundamental human rights of all people is itself a contribution to the unification of humanity. The main point of bringing human rights into the international community is to permit criticism of nation states when they fall short of the attainment of the established principles. Criticism by members of their own community. Criticism by other states. And, ever so cautiously, criticism by the United Nations itself.
3. One of the great values for the Universal Declaration is as it attempts the reconciliation of different philosophies and the goals of people of different cultures. The need for adherence of the United Nations to these ideals arises from the recognition that they are necessity if the objectives of true peace and security are to be attained.
4. Ideas have power. The Universal Declaration is nothing if not a political instrument. It has influenced the regional human rights conventions which grew up around it to give teeth to the objectives stated in it. It has, in turn, given birth to many special treaties which are binding in international law and which have an increasingly effective network of enforcement mechanisms. It has influenced the post-war constitutions of newly independent nations everywhere. There is a tension between individual human rights and the international legal order as it has hitherto been understood. But it is a mighty achievement of the past fifty years that the ramparts of that international order have been stormed and human rights are now well and truly established within. The Universal Declaration set in train a movement to establish norms by which the legitimacy of states within the international order may be measured and their protestations judged.
5. The Universal Declaration has given birth to something more. Out of its ideals have grown a vast array of non-governmental organisations, and civil society bodies, committed, in very practical ways, to upholding universal rights at home and abroad. These bodies, in turn, stimulate national governments, regional bodies and international agencies to respond to the cases of abuse, measured against the Universal Declaration, now brought to light by the global media. Within the United Nations, the work of bodies such as WHO and the network of Special Rapporteurs and Special Representatives of the Secretary-General give substance to these aspirations. They constantly do so by reference to the principles of the Universal Declaration and the Covenants which grew from it.
6. During the period immediately following the adoption of the Universal Declaration, it gave a special stimulus to the movement for decolonisation and the end of apartheid. It also gave goals and aspirations for the emerging new nations. They have often fallen down, as we all have, in the attainment of the objectives of the Universal Declaration. But only one of them has ever rejected the Universal Declaration. All of the rest accept it, at least in words, as the statement of goals to be attained.
7. The Universal Declaration has also encouraged a culture of human rights. It has given rise to an unending effort to expand and recreate the boundaries of human rights. It has stimulated the movement for gender equality, multicultural diversity, an end to sexual oppression, the defence of the environment and the attainment of the self-determination of peoples. Once ideas such as those collected in the Universal Declaration were set loose, they were unlikely to remain captive to the words adopted fifty years ago.
We can take satisfaction from the achievements secured since the Universal Declaration
was adopted fifty years ago. But major challenges remain: to strengthen the machinery for the effective enforcement of human rights - including by the creation of a human rights charter and court for the Asia-Pacific region of the world. To secure true equality, beyond the rhetoric, for all women. To achieve effective protection for children everywhere. To embark on new areas long-neglected: The protection of homosexuals from discrimination and oppression: The defence of people living with HIV/AIDS so that legal and social burdens are not added to their health predicament. To look afresh at the issues of the human rights of drug users and drug dependent people. To build the defences of privacy in the age of the Internet and on the brink of Cyberspace. Many fresh and puzzling challenges are presented by developments in biology. Fortunately UNESCO has recognised this. It has established the International Bioethics Committee on which I have the honour to serve. That Committee has formulated the Universal Declaration on the Human Genome and Human Rights.
This new Universal Declaration
was adopted unanimously by the General Conference of UNESCO on 11 November 1997. Nearly 50 years after the adoption of the Universal Declaration
of 1948, a new instrument, of importance to human rights in the future, has been developed. It is before the international community. Truly, it addresses contemporary challenges to human rights which were not even imagined in 1948. The question of who will be the human beings of the future is an issue of human rights of the first importance for the coming millennium.
We should take encouragement from the achievement, 50 years ago, of Mrs Roosevelt and her colleagues. We should re-dedicate ourselves to be as bold and brave and resourceful as they were. The journey of human rights expression and protection continues. UNESCO, as the conscience of the United Nations, has a vital role to play. And so do all of us.