A Future for Human Rights Law
Chapter 28
A Future for Human Rights Law
1. Introduction
The GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.1
On a cold Paris evening on 10 December 1948, just before midnight, the members of the General Assembly of the United Nations (UN) rose as one to give a standing ovation to Eleanor Roosevelt and the other members of the UN Human Rights Commission. This rare gesture of appreciation was because the commission had been the primary drafters of the UDHR, which had just been adopted by the General Assembly. As the then president of the General Assembly, Herbert Evatt of Australia, stated:
[T]he adoption of the Declaration is a step forward in a great evolutionary process … the first occasion on which the organised community of nations has made a declaration of human rights and fundamental freedoms. That document is backed by the authority of the body of opinion of the United Nations as a whole and millions of people, men, women and children all over the world who would turn to it for help, guidance and inspiration.2
Six decades after the adoption of the UDHR, it is valuable to reflect on where there may be a further ‘evolutionary process’ in the development of international human rights law.
While the authors of the various chapters in this book have expertly analysed many aspects of the development of international human rights law over the past six decades after the adoption of the UDHR, I aim, in this concluding chapter, to offer some thoughts on the future of international human rights legal protections based upon the terms and inspiration of the UDHR. I will do so in the context of the final words of the Preamble of the UDHR, which are set out above. These words indicate that ‘every individual and every organ of society’ is to promote respect for human rights, and they are to secure the ‘universal and effective recognition and observance’ of human rights. These words do not demand that only one ‘organ of society’ – the state – has the responsibility to protect human rights and to ensure their fulfilment. Rather, these words make clear that every person and every organ of society has these responsibilities.3 Therefore, I will explore the possibilities that may arise in the future for human rights protections if international human rights law were to be inspired by the UDHR to extend legal obligations to individuals and other organs of society, that is, to non-state actors, and the impact that this could have on the universal and effective protection of human rights.
2. The State and the UDHR
There has been much debate about whether the UDHR – or parts of it – is legally binding on states under international law. There is no doubt, however, that most of its articles have been the direct inspiration for human rights found in international and regional human rights treaties, which create binding international legal obligations on those states that are parties to them, as well as in national legal protections. As every state has ratified at least one major international human rights treaty (albeit many with reservations), there is a consensus that human rights can and do create international legal obligations on states. This was confirmed by the Vienna Declaration on Human Rights, which stated that ‘the promotion and protection of all human rights is a legitimate concern of the international community.’4
One part of this debate concerns whether all or some of the articles of the UDHR are binding on all states as a matter of customary international law. While this argument has rightly been treated with caution, recent developments have made this argument more tenable. On 18 June 2007, the UN Human Rights Council adopted a resolution for the creation of the Universal Periodic Review (UPR). This required every member state of the UN to be reviewed regularly for its compliance with human rights. The resolution stated that the basis for the review is the following:
a. The Charter of the United Nations;
b. The Universal Declaration of Human Rights;
c. Human rights instruments to which a State is party;
d. Voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the Human Rights Council (hereinafter ‘the Council’).5
This resolution makes clear that one of the appropriate legal sources for questioning every state about its human rights record is the UDHR. Since the UPR began, many states have been questioned about human rights for which they have no treaty obligations. The only basis for the question (and the answers) could be customary international law obligations arising from the UDHR. There have been no objections by states that this is an improper or illegal basis. This implies that states have accepted that the UDHR is a legitimate and lawful basis for binding customary international legal obligations on all states.6
This development is consistent with the general acceptance by states that they have the obligation to respect, protect and fulfil international human rights legal obligations. These legal obligations of a state are not restricted to actions and inactions by state actors, such as the government, police, military and the courts, but also encompass actions by non-state actors within the territory of the state. For example, the state has been held responsible where it has failed to protect civilians from non-state armed opposition groups and from paramilitaries during internal armed conflict, and where it has not investigated the situation.7 In addition, states have been held internationally legally responsible where employees of corporations have been dismissed or victimized for joining a trade union,8 where the activities of non-state actors have caused pollution,9 and for failures by the state to protect indigenous peoples’ land from harm caused by development.10 This position is based on the general obligations on states as rightly indicated by the Human Rights Committee (HRC):
[T]he positive obligations on States Parties to ensure Covenant [the International Covenant on Civil and Political Rights] rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 [being the general obligations on a State] would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.11
These views are essentially applicable for every major human rights treaty. A state is responsible, under international human rights law, for the actions of all those within its jurisdiction for violations of human rights.
3. Beyond the State
However, the UDHR does not limit its concerns to state actions or state responsibility. It is not directed to states alone. It is directed to ‘every individual and every organ of society’. It does not require – in contrast to human rights treaties – that it is for states solely to respect human rights and for states solely to secure the rights.
Indeed, during the drafting of the UDHR, a meeting of the UN Economic, Social and Cultural Organization (UNESCO) sought to clarify the philosophy of human rights. It obtained views from around the world about human rights. They concluded that, across all cultures, human rights could be ‘seen as implicit in man’s nature as an individual and as a member of society and to follow from the fundamental right to live’.12 Their views were not dependent on the role of the state but reflected the broader idea of human rights within the context of neighbourhoods and societies, including in terms of duties to a neighbour.
This is a powerful idea about human rights. Under the UDHR, human rights are about protecting individuals (and groups) from oppressive power, primarily in the context of the communities and neighbourhoods within which they live. This idea of human rights for which ‘every individual and every organ of society’ is responsible is at the heart of the UDHR. However, this idea has generally been lost in the formulation of much of international human rights law, especially in the treaties. While the preambles of these treaties do refer to broader issues as to the philosophical basis of human rights, they ultimately focus on a single relationship between an individual and the state. Even the group rights, such as the right of self-determination, are largely restricted in exercise to individual means within most treaties. Thus, the human rights expressed in treaties are conceived in terms of a binary opposition between the individual and the state, with the individual being ‘rights-bearing’ solely in relation to the state.13
A number of scholars have noted how this construct of the state and the individual in human rights treaties is created in the form of an ideal of the European or Western centralized model of the state and of an autonomous self-interested individual, even though the model has limited utility elsewhere.14 Dianne Otto has shown how this construction erases alternative experiences, particularly of those having communitarian traditions and of women, and reinforces the notion that some actions are ‘private’ and so not within the coverage of international human rights law.15 Indeed,
The narrow focus of human rights law on State responsibility is not only out of step with current power relations, but also tends to obscure them. The exclusive concern with national governments not only distorts the reality of the growing weakness of national-level authority, but also shields other actors from greater responsibility. The focus on State responsibility also creates a false sense of rigidity or inevitability about social and political hierarchies and existing inequities.16
One other consequence, as Philip Allott has astutely pointed out, is that:
Human rights [have been] quickly appropriated by governments, embodied in treaties, made part of the stuff of primitive international relations, swept up into the maw of an international bureaucracy. The reality of the idea of human rights has been degraded. From being a source of ultimate anxiety for usurping holders of public social power, they were turned into bureaucratic small-change.17
What is lost in this narrow conception of human rights adopted by international human rights treaties is the broader concept of human rights found in the UDHR, which is about empowering humans in every situation and every relationship.
It is possible for the broader understanding of human rights in the UDHR to be carried forward in the future. This would mean that human rights’ legal protections are not limited to the relationship with one institution, that is, the state, which is essentially a political institution. Instead, they are involved in every relationship that humans have: economic, social, cultural, religious, personal. This is not surprising as individuals, community leaders, groups and non-governmental organizations can all impact on the human rights of others. As the former president of the Czech Republic, Václav Havel, has noted:
The exercise of power is determined by thousands of interactions between the world of the powerful and that of the powerless, all the more so because these worlds are never divided by a sharp line: everyone has a small part of himself in both.18
Sadly, the reality is that many people are oppressed by others who have more political, economic, social or cultural power, or power within personal relationships. It is this desire to assert human rights in the face of the potential of oppressive power in any form that is found in the UDHR. It is a responsibility on ‘every individual and every organ of society’ to protect these human rights in their daily lives. Indeed, Eleanor Roosevelt noted:
Where after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he [or she] lives in; the school or college he [or she] attends; the factory, farm or office where he [or she] works. Such are the places where every man, woman, or child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.19
4. Non-State Actors and Human Rights
4.1 Corporations
Eleanor Roosevelt spoke of the need for human rights to be in the ‘the factory, farm or office’ where people work. Yet, despite many attempts and assertions, the reality is that international human rights law has not directly engaged in this area of economic activity. This is despite the fact that corporations own many factories, farms and offices, and that the majority of investment into developing states is by corporations.20