In a world of unspeakable cruelty and inconceivable injustices perpetrated by Sovereign States against their own people, it is at times easy to forget the International human rights regime that came into existence after the atrocities of World War II.
The birth of the Universal Declaration of Human Rights can be traced to the draft declaration adopted by the UN Commission in 1948 which was subsequently adopted by the the General Assembly . Together with the International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, Optional Protocol to the International Covenant on Civil and Political Rights, Second Optional Protocol to the International Covenant on Civil and Political Rights, they comprise the International Bill of Rights.
The two covenants only came into force in 1976 when they secured a sufficient number of ratifications to bring them into force (Alston, p. 142) and provide an expansive coverage of not just social and economic rights of individuals, but also civil and political rights. As Steiner states:
‘‘No other document has so caught the historical moment, achieved the same moral and rhetorical force, or exerted as much influence on the movement as a whole….The Declaration expressed in lean, eloquent language the hopes and idealism of a world released from the grip of World War II….the Declaration proceeded to work its subversive path through many rooted doctrines of International law , forever changing the discourse of international relations on issues vital to human decency and peace.”( Alston, p.142)
This essay will attempt to explore the extent to which the norms of the UDHR have indeed impinged on International law in obliging nation States to uphold the fundamental standards of decency owed to individual human beings.
Arguments are raised by some that the UDHR lacks the status and normative force of International law since the ‘declaration was voted in the General Assembly’ therefore depriving it of ‘the formal authority of a treaty that binds its parties under International law.” (Alston, p. 142) For instance, Lauterpacht, the creator of the term ‘crimes against humanity’ , wrote in 1950 that ‘not being a legal instrument, the Declaration would appear to be outside international law.’ …it cannot properly be invoked as a source of legal obligation . ” ( Alston p. 153)
It is noteworthy that a number of countries , such as Singapore, Malaysia and Saudi Arabia, have yet to sign and ratify the International Covenant on Civil and Political Rights (ICCPR).
Yet, the International Bill of Rights including the UDHR may be argued to enshrine the most fundamental of human rights underpinning the dignity of human beings which should not be undermined by political states propounding an ethics of Machiavellian political expediency.
Art.1 of the UDHR states that:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 6: Everyone has the right to recognition everywhere as a person before the law.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law.
It is instructive to note that the human rights norms underpinning the UDHR came into existence only in the aftermath of the holocaust carried out by a Sovereign State, Nazi Germany. The preamble to the UDHR 1948 reminds us of the unspeakable cruelty perpetrated against millions of men, women and children by a nation State when it asserts that : ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”.
The preamble goes on to speak of the ‘advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”
The ideological tension between Human Rights Norms underpinning International law and State Sovereignty
It is argued that the potentiality for violence against and dehumanization of individuals resides within the political machinery of Sovereign States. Totalitarian political systems like that of Nazi Germany, although examples that fall within the extreme end of the spectrum of state sanctioned violence, reveal the latent possibilities that exists within a political state for the cruel and brutal treatment of human beings. Hannah Arendt writes of the State’s dehumanization of individuals:
The aim of totalitarian education has never been to instill convictions but to destroy the capacity to form any. The introduction of purely objective criteria into the selective system of the SS troops was Himmler’s great organizational invention; he selected the candidates from photographs according to purely racial criteria. Nature itself decided, not only who was to be eliminated, also who was to be trained as an executioner.
(Arendt: The Origins of Totalitarianism in Cohen p. 551).
It is therefore imperative that States respect Human Rights norms enshrined in International law. Epitomizing the humanity of individuals as the embodiment of equal dignity and rights in every person arguably gives expression to the inherent worth of every human being in international society in a globalized world . However, international society itself, as conceived by the English School of International relations, is made up of sovereign political states that very often recognize themselves rather than the individuals that comprise the States as subjects of the rights and protection afforded by International Law.
Thus we perceive an apparent ideological tension between Art.1 of the UDHR and Art.2 of the Charter of the United Nations which recognizes the principle of Sovereign equality of all states, and the doctrine of non-intervention of one sovereign state in the affairs of another.
”The Organization is based on the principle of the sovereign equality of all its Members.”
”All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”; ( Art.2 ,Chp.1, Charter of the UN, 1945)
The International Covenant on Civil and Political Rights: More honored in the breach than in the observance?
The International Covenant on Civil and Political Rights (ICCPR) has the status of a multilateral International human rights Treaty, adopted by the United Nations in 1966 (ICCPR). Together with the International Covenant on Economic, Social and Cultural Rights (ICESCR) ‘it gives legal force to the Universal Declaration of Human Rights.’ (Equality and Human Rights Commission 2017).
The ICCPR ‘binds the states parties in accordance with its terms and with International law, subject to such formal matters such as reservations..'( Alston. p. 158) Further, ‘the ICCPR creates an ongoing institution , a so-called Treaty Body: the (UN) Human Rights Committee’ that ‘gives institutional support for the Covenants’ norms ‘ ( Alston p.158) which include:
Article 1:All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 6:Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 7 :No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 9:Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention
Article 18:Everyone shall have the right to freedom of thought, conscience and religion.
Article 19:Everyone shall have the right to hold opinions without interference.
Article 21 :The right of peaceful assembly shall be recognized
Art.2 of the ICCPR recognizes the duties of State parties to ensure any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Despite the existence of the ICCPR and other international human rights treaties, Sovereign States continue to breach or disregard such rights , relying on a minimalist approach to the protection of human rights while rejecting rights of individuals to political participation, freedom of speech and association and protection from arbitrary arrest. Such states may justify differential or discriminatory treatment of minorities, for instance, by invoking a relativist stance based on the cultural, racial and religious particularities of their citizens .
However, consider the thought provoking question posed by Alston: “Are there concessions in any provisions (in the UDHR and ICCPR) to different cultures or regions that would allow those cultures or regions to privilege their own practices and traditions rather than follow these instrumental rules- for example, by inflicting certain severe modes of criminal punishment, or governing by theocracy or inherited rule, of imposing restrictions on minority religions or on activities on women?” (Alston p. 161).
It is submitted that the particularistic cultural practices , values and national conditions of individual nation States are variables that continue to impinge on the way the human rights norms are interpreted and applied in such States.
It is argued that there remains:
a core of fundamental values which must be common to all nations, states and individuals and may not, therefore be derogated from… the fundamental values of the world society are those enshrined in that core of rules that constitutes the intenational jus cogens , a set of peremptory norms that may not be derogated from.’
(Antonio Cassese 2012 in Alston p. 163).
Jus cogen rules include human rights norms such as those ‘banning genocide, slavery , racial discrimination, forcible denial of self-determination… the ban on torture, the right to life, the right of any person arrested or detained to be brought promptly before a judge ( the so-called habeas corpus right) and the ban on refoulement (refusal of entry of refugees at the frontier). (Antonio Cassese 2012 in Alston p. 163)