Are Civil and Political Rights Universal?

On the 10^th December 1948, the Universal Declaration of Human Rights was enshrined in international law.  This event was profoundly significant, given that at no point in history had human beings attempted to universalise human rights.   However, significant controversies have arisen about the limitations to universal rights.  These tensions reflect the assertion of individual rights over time and the ongoing erosion of state sovereignty. 

This paper will investigate the historical underpinnings of human rights in natural law and the shifting sands of defining human rights.  The Universal Declaration is considered the watershed of the emergence of international human rights and the Covenants and institutions which enshrined human rights into international law.   Significant tensions are highlighted within the framework of an anarchical system based on realist assumptions which value national interest over human rights.   The tensions are revealed though the perceived prism of fragmented universalism such as culture, self determination, declining national sovereignty and increasing international human rights institutions.   Finally the importance of human rights is linked to the achievement of global justice and notions of universalism extended to the idea of global governance.

Human Rights and Natural Law

The idea of a natural or divine law binding people and requiring decent treatment, is ancient.  Natural rights are referred to in the writings of Locke and Jefferson.[i]    Lock referred to the enjoyment of natural rights that no-one can take away and that the state of nature is that men are free and equal.[ii]  Rousseau highlights the distance between the ideal of freedom and the reality, stating that ‘man is born free, but everywhere is in chains’.[iii]    The theory of human rights in terms of natural law is based on three main pillars.  The first is that the laws are inherent in human nature and do not require recognition.  Secondly, the natural order is universal and immutable regardless of  the social situation.  Lastly,  rights belong to individuals not groups.[iv]  The fundamental principle for a right depends on whether it is attained or is aspired to.   The former refers to legal code affecting the possessor, and the latter refers to finding good reasons for maintaining its legitimacy.   The fundamental principle of human rights is not a question of positive rights but of natural rights desirable and worthy of pursuit.  The illusion of an absolute fundamental principle has arisen for centuries and is common in natural law on the basis of human nature.   The absolute principle is considered groundless given that human rights is a very vague expression, the content of rights requires value judgements and is interpreted in different ways according to ideology.  Fundamental rights are considered necessary for final values which are antinomical and unable to be accomplished universally at the same time.   Rights such as property rights were considered absolute at the end of the 18^th century but have now changed to social rights, a concept not considered in earlier era’s.  Rights change with new demands and are not fundamental, it is the given historical era that appears fundamental.[v]

The traditional foundations of a universal bill of rights was established in Europe and the US by agreements forged in the middle ages such as The Magna Carta, the French Declaration of the Rights of Man and the Citizen (1789) and the United States Bill of Rights (1791).[vi]   Human rights is a development of individual rights.[vii]   The declarations express universal standards of the conduct of government.[viii]

The Universal Declaration of Human Rights

The League of Nations (1919) had no explicit concept of human rights.[ix]  However, in the post 1945 period, the Charter of the United Nations referred to human rights.[x]  The Universal Declaration of Human Rights (UDHR) and the are presented the contemporary view of human rights and differed from earlier conceptions in terms of being more egalitarian, less individualistic and with an international focus.[xi]     The UDHR emerged out of the ashes of World War II and was particularly influenced by Nazi atrocities.  States had pursued racist policies of imperialistic expansion and Hitler had a contempt for human rights and freedom.[xii]  The aftermath of the war provided a fertile environment raising political consciousness.[xiii]

The UDHR represented an unprecedented historical event enshrining for the first time a system of universal principles that were freely expressed and accepted by the majority of people.[xiv]    The document indicates that human rights are universal and inalienable and that the claims are inclusive of all people.[xv]  It was symbolically central and defined a comprehensive code guiding the internal government of members.[xvi]   The UN Charter sought to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, [and] in the equal rights of mean and women and of nations large and small.[xvii]

It was promulgated to maintain peace and security, however it acknowledged non-interference in state sovereignty.    The first 21 articles are similar to the US Bill of Rights, the civil and political rights include equal protection and non-discrimination.[xviii]  The emphasis of the content is on political freedom due to the influence of the West.[xix]  Articles 22-27 refer to economic and social benefits and rights in respect of the welfare state.[xx]  In 1948 the UN General Assembly adopted the Universal Declaration of Human rights.[xxi]  A total of 48 countries for, none against and 8 states abstained.  The white dominated South Africa abstained on the grounds of political rights.  The Soviets regarded the declaration as insufficiently attending to social and economic rights, essentially viewing it a cold war document.  Saudi Arabia objected on religious grounds.  Hence, the Universal Declaration was not universally accepted.[xxii]

The framers of the Declaration included Chang, Cassin, Malik, Roosevelt whom identified themselves as universalists.  They did not envisage a single model but believed that human nature everywhere is in a process of experiencing, understanding, judging and capable of leading to certain basic truths.   Eleanor Roosevelt indicated that the Declaration was a spiritual document, stating it:

 [declaration] is based on the spiritual fact that man must have freedom in which to develop his full stature and through common effort to raise the level of human dignity.

The Declaration upholds principles not as legal norms but as a common ideals for all people and nations.  However, the preamble indicates that it is indispensable that human rights are protected by laws to avoid rebellion against tyranny.[xxiii]   Hence, guidelines are not legally binding and classified as ‘soft law’ which are not subject to court decisions.[xxiv]   The foundation of world order rests on a territorial logic that is supportive of sovereignty and nationalism.  The core principle of the UN is non-interference in the domestic affairs of states.[xxv]   Sovereignty could only be overridden by Chapter VII in respect of threats to international peace and security.    Many governments were imposing control over their society and ignoring standards, viewing the Universal Declaration as a paper tiger.[xxvi]

Human Rights Institutions

Following the adoption of the Declaration the International Bill of Human Rights was drafted. [xxvii]  Advocates of the International Bill of Rights wanted norms backed by enforcement procedures to apply pressure to violators.   Drafts of the International Covenants were submitted for General Assembly approval in 1953.[xxviii]  The two treaties were the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) with the Optional protocol. [xxix]   As a result of the Cold War the treaties were not approved until 1966.[xxx]  The purpose of the Covenants are to interpret the Universal Declaration in binding treaties and provide implementation procedures for states parties. [xxxi]    The treaties commenced with the statement ‘all peoples have the right to self-determination’, and ‘by virtue of this right, they freely decide their political constitution’.   Article 3 emphasises that ‘states…must promote the implementation of the right of peoples to self-determination’.[xxxii]  Efforts to codify and implement measures play a central role in internationalising human rights and humanising international law.[xxxiii]  

The Human Rights Commission was set up in 1946 preparing studies and tasks assigned by the General Assembly.[xxxiv]   The human rights treaties are implemented by the Human Rights Committee.  The Committee was established in 1977 in accordance with article 28 of the ICCPR and tasks are set out in articles 40-45.   The Committee studies reports and settles disputes among state parties.   However, state parties have to recognise the competence of the Committee to take effect.    If there is no recognition, then the case will not be heard.  The Optional Protocol was considered significant in terms of allowing individuals to claim their rights.  However, no communication can be received unless the state party is a party to the Covenant and Optional protocol.[xxxv]  Other examples of treaties embodying human rights included the 1949 Geneva Conventions,[xxxvi] UN Convention Against Torture and UN Convention on the Rights of the Child.[xxxvii]

The most successful system today for enforcing human rights is based in Europe.[xxxviii]   The Council of Europe established the regional European Convention of Human Rights and an international court to adjudicate disputes.[xxxix]  The treaty is stronger then the UDHR and declares similar rights to the 21 articles in the Universal Declaration.[xl]   The European systems enables an individual to attain a legal remedy beyond national courts.  This is not available to non-European countries.[xli] 

Tensions in the Interpretation of Rights

In the drafting of the Universal Declaration it has been argued that the document is not universal.  At the time of drafting it is argued that most of the world’s population were not represented, such as large parts of Africa, some Asian countries, defeated axis powers and those under colonial rule.    However, the membership of the third committee who discussed every line represented a large variety of cultures. In fact before the 2 year draft process was concluded, hundreds of individuals had participated.[xlii] 

Over the years the Declaration’s universiality was attacked in the name of cultural integrity, self determination and national sovereignty.  It was characterised as an instrument of neocolonialism.  It was claimed that the Declaration was imposing foreign values and asserted that it was a ‘western’ document.   Some of these claims were found to be made by authoritarian governments masking domestic concerns.  Civil and political rights were most often labelled as ‘western’ but the least controversial.[xliii]  Others claimed that there is a cultural bias, ‘asian values’ are different, whereby rights refer more to social choices that are differently formed e.g. Islam, Christianity or secularised Christianity.[xliv]  However, the Declaration was influenced by the modern dignitarian (family) rights tradition of Europe and Latin America than by Anglo-American lineage.    Thus it has more in common with Asian and African culture.  It implies a priority on individual freedom, and on the rights bearer, that of the self-determining and self-sufficient individual.   Everyone is considered an individual and in relationship with others, uniquely valuable and engaged in real-life relationships of dependency.[xlv]

International human rights was initially viewed by world leaders as insignificant and placed on the back burner in terms of importance.  This world view is perceived through the prism of realism.   Realists believed that only countervailing power could maintain world peace.  This consensus dominated the shape of global policy and used human rights as a vehicle of foreign policy.  The events of Tiananmen Square in China were only half heartedly discredited by world leaders.[xlvi]  The US, once viewed as a champion for human rights, lost its reputation. [xlvii] In the mid 1990s, the US opposed a strong UN effort to curtail genocide in Rwanda.[xlviii]  The UN was unwilling to intervene in Rwanda, Burundi and Zaire/Congo, regions of little geopolitical importance.[xlix]   Additionally, North attempts to dominate the human rights agenda have been regarded as deceitful.  The rhetoric of improving human rights and democracy has concealed the real intent of national interest. [l]   In 1995, the US led UN effort in Haiti under the guise of preserving democracy, was actually intended to prevent an inflow of refugees into the US.[li]   In the Gulf War, 200,000 Iraqi’s were killed in the interests of oil supplies.[lii]   Areas such as sub-Saharan Africa are outside the domain of strategic interest and are unlikely to attract intervention to uphold human rights. [liii]  Yet, the worse abuses are in this part of the world.   Northern strategies were designed to dominate primary resources.  Intervention by the International Monetary Fund (IMF) and World Bank Structural Adjustment Programmes were debilitating, forcing governments to reduce spending and apply high interest rates, leading to de-industrialisation and poverty.  In this region, approximately 300 million out 500 million people now live in absolute poverty.[liv]

The universal application of rights can create tensions between countries.   In both Covenants, Article 1 refers to the right to self determination.   The implementation of this norm universally would challenge the largest states in the world.    Tensions were evident in the military efforts in support legal and moral claims on Chechnya, Tibet and Kashmir against Russia, China and India.   Thus, world order tensions produced by unresolved claims are severe.  Hence, the most fundamental claim of that in law equals are treated equally becomes a mockery.[lv]

The standard justification for humanitarian intervention is the massive scale of human rights violations.  This reveals that the principle of Westphalian world order – territorial sovereignty, has been been eroded.   Increasingly familiar terms such as ‘genocide’ and ‘crimes against humanity’ are used to provide intervention justifications.  In 1999, this was evident by NATO’s air war in Kosovo.  Moreover, using institutions such as the Hague War Crimes Tribunal highlight recent attempts to prosecute political leaders such as Slobodan Milosevic, considered responsible for war crimes. [lvi]   The International Criminal Court is a further example of a wider effort to institutionalise criminal liability.[lvii]

International organisations have no formal power to enforce rights on governments.[lviii]  The rise of grassroots activism pushed hard for implementation of rights creating  pressures on both States and Corporations.[lix]   There are approximately 50,000 non-governmental organisations (NGOs) in the world which are regarded as the real motor driving the process.   The most well known are:  Amnesty International, Human Rights Watch, and the International Commission of Jurists.[lx]   NGO’s such as Amnesty International document human rights violations. [lxi]   The majority of states at the UN were not democracies and disallowed opposition.  Those jailed, Amnesty referred to as ‘prisoners of conscience’.[lxii]   The revisionist view states that globalisation  has eroded the power of nation-states and NGO’s are filling the gap with ‘people power’.    Eleanor Roosevelt described these public channels as the:

* curious grapevine penetrates the darkest secrets of closed societies, shines the light of publicity on their human rights violations judged in the court of world opinion. 

The NGO’s placed human rights at the centre of the political agenda.  They pushed for new international legal standards, building enforcement and mobilising opinion. [lxiii]   Campaigns are generated in part by letter writing and the internet.  Amnesty in its campaign lobbied for both the International Criminal Court and the High Commissioner for Human Rights, gaining 1 million signatures.[lxiv]   Moreover, some Corporations view profit over people such as Shell in Nigeria.  However, NGO pressure has influenced corporate decisions exemplified by Pepsico refusing to expand into Burma and Levi Stauss refusing to make jeans in China.[lxv] 

Global Justice

Realising human rights is considered tantamount to achieving global justice.  Globalisation creates a sense of a shared humanity or destiny.[lxvi]   It is argued that there needs to be a new form of global politics which is motivated by values and human solidarity then national interests.    The contribution by the European Union, particularly in terms of economic co-operation and protection of human rights is viewed as the boldest world order experiment.   In addition, the destabilising power struggles in the anarchical society fragment universalism.  It is suggested that a basic conception of world governance would create greater stability.  The framework could be envisaged to be designed with constitutional checks and balances, effective enough to prevent war and decentralised to resist global authoritarianism.[lxvii]

Conclusion

The Universal Declaration of Human Rights was a universalist document inspired to assist in an evolutionary process to arrive at basic truths to raise human dignity.  The document was not a single model to be strictly applied to the world community.   However, within the context of an anarchical  world system, governed by realist philosophical orientations, rights were not respected without the evolution of international institutions of enforcement and vigilance.   The emergence of human rights treaties and legal institutions has inevitably curtailed the technical universiality of human rights given the myriad of interpretations, institutional restrictions and laws.    However, the vigilance of non-government institutions has ensured that documentation and public pressure has focussed the international spotlight on violators.    The success of these forces is testimony to the growing range of international human rights institutions such as the European Commission, the UN High Commissioner for Human Rights and the recent ratification of the International Criminal Court.    Therefore, civil and political rights are becoming universal when held up against the light of the true spirit of universalism, that of increasing personal freedoms and raising human dignity.