On the Universality of Human Rights in a Changing World
Minister Verhagen planned to attend but, unfortunately, is unable to be here because of an unforeseen NATO meeting in Brussels. I am very honoured that you have asked me to speak, replacing the minister, but also using my experiences as human rights ambassador.
As you know, human rights are centrepiece of our minister’s agenda. “Nothing new”, Heldring wrote in the NRC not so long ago, “compared to previous governments”. I beg to disagree: these days we have formulated very concrete priorities and objectives. With an action programme, with funds, with more bilateral and multilateral activities and initiatives; and with more contacts at all levels. And it goes far beyond lip service.
It is also important to note at the outset that this centrality of human rights in Dutch foreign policy is not only based on moral conviction – essential as that is. Just think of the 12-year old Somali girl, convicted of adultery after being raped by a gang of males, and stoned to death in a Mogadishu stadium.
It is also based on the belief that promoting respect for human rights and fundamental freedoms will support stability, security, rule of law, and democracy. That is important to third countries, but it is also in our own interest: it makes it easier to enter into productive relations, and it can help contain negative cross-border effects in areas such as trafficking, forced migration, terrorist threats.
Finally, let’s not forget that we have included in our Constitution the government’s obligation to promote the international legal order, of which human rights are a part. And as the Vienna Conference of 1993 stated: since human rights are universal, they are a legitimate concern of the international community.
Overriding framework
Universality -today’s subject- is the overriding framework of our human rights strategy: point of departure, not just an ambition or intention for the future.
Questions surrounding the universality of human rights are regularly raised, directly or indirectly, during my bilateral meetings and country visits, but also at multilateral gatherings. Mostly by colleagues from governments, sometimes by NGO’s and academics. It is fair to say that the discussions are not always simple or leading to “clear cut” conclusions, agreements or solutions. More than once doubts are being expressed by my interlocutors (again, in particular from governments) about our intentions, references are being made to cultural or religious or traditional specificities and limitations, or accusations being made to “the West” of using double standards.
In my view sometimes the arguments are sincere, but sometimes they are simply being abused to hide domestic shortcomings or they serve opportunistic political agendas.
Recent initiatives at the UN, both in the General Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on interreligious dialogue, are slow but in my view sure attempts to weaken the fundaments of universal rights: rights for everyone, everywhere, at all times.
In the Universal Periodic Review process some governments have argued for differentiation based on differences in culture and development. This is all reason for growing concern. We have to step up efforts to secure these fundaments.
AIV report
For that reason, and in order to inject new arguments into the debate, the AIV was asked for an updated advisory report on universality. You will all undoubtedly know the advise, which was published in December 2008. In its response, the government very much welcomed this thoughtful report and the insights and recommendations the AIV provided.
The government agrees with many parts of its content. The government shares the AIV’s concern about the lack of implementation of internationally agreed norms. The government also embraces the recommendation to support grassroot organisations in order to strengthen bottom-up support for fundamental, universal rights. Something that we now increasingly do through the Human Rights Fund and other instruments.
But the government also expressed criticism. It is more worried than the AIV about attempts to undermine the concept of universality and it emphasises the importance of clear boundaries when it comes to the scope for and recognition of culture-specific applications of human rights in practice.
To be clear: in our view universality does not mean that every society should look the same, but it does mean that the behaviour of governments towards their people should meet certain minimum requirements that are defined in terms of human rights. In particular in areas such as protection of individuals and enjoyment of equal opportunities and non-discrimination.
Basis
Universality is not a plea for uniformity – after all, no two individuals or countries are the same – but for a universal basis to guarantee freedom and equality for all human beings. The government in its response is also more positive about the need and the potential for more progressive interpretations of human rights, for instance on women’s rights or protection of gays and lesbians. We are not naïve, it is often a long shot and not always feasible. But by sticking out our neck and consistently asking attention for violations of basic rights we can see improvements, as has been clearly shown in the field of women’s rights.
The full title of today’s meeting is “the universality of human rights in a changing world”. That implies that the debate on universality, naturally, is related to the times we are living in. But I was wondering if the title also implies a suggestion that the content of universality would require a different, adjusted, interpretation. We would not agree with that. For us, as expressed in the Human Rights Strategy, universality is point of departure. We are hesitant about the concept of a process of universalisation, as the AIV has suggested. That could lead to arbitrary interpretations.
I would like to take a brief look at the ways universality of human rights was challenged right from the start. For that, I made good use of an interesting recent book by Roger Normand and Sarah Zaidi on Human Rights at the UN. Subsequently, I would like to give a few remarks on some of the challenges to universality that we are confronted with today.
Negotiation
Contrary to religions and ideologies, which sometimes claim universality of their values, it is important to realize that the universal human rights as we know them today have been the result of a process of global negotiation. The main characteristics we now attribute to human rights – universality, the primacy of the individual, recognition in law and politics – were defined and codified after the Second World War.
Alternative notions of human rights were brought to the table which stressed, for example, groups more than individuals, or duties more than rights. It was the memory of the Nazi-horrors that, in my view, contributed to an overwhelming focus on the promotion and protection of rights of the individual.
There has been a high level of American influence on the early post-war human rights system. However, it is not fair to conclude that this predominance automatically means that the norms were an imposition of American or Western values on the rest of the world. The working group preparing the Universal Declaration consisted of members representing all regions, religions, convictions.
The worldwide awareness of, and support for human rights among ordinary people illuminates how human rights were (and are) valued across the globe. There has probably not been any other set of values and ideas that has gained such wide, in fact universal, appeal.
It is important to realize that the universal nature of human rights was never undisputed. Universality was already a topic of discussion during the early negotiations on the Universal Declaration of Human Rights in the mid-forties. And the sensitive nature of the subject was also reflected in the subsequent negotiations on the other components of the so-called ‘Bill of Rights’: the Covenant on Civil and Political Rights and the Covenant on Social, Economic and Cultural Rights.
Reservations
The issue of reservations to these covenants, which was debated during almost two decades, posed a great challenge to the universal application of these treaties. A closer look at the debates – as illustrated by Normand and Zaidi – gives us an interesting retropective of the way universality was perceived by different states. I will just highlight a few points.
The Soviet Union was a strong – and very vocal – supporter of reservations, which was consistent with its demand for absolute sovereign authority over domestic affairs. States opposed to reservations were primarily developing countries – with some European support. They tried to defend the central assumption of the human rights system – that states should adhere to a set of fundamental legal principles applicable to all peoples. These states pointed out that inconsistent domestic laws needed to be harmonized with, not shielded from, universal human rights.
In 1952 states were still split. The Soviet bloc insisted on the right to make reservations without any limitation. A large group of countries took the opposite position and rejected reservations as inappropriate in the case of human rights treaties.
Lebanon and Ethiopia, for example, took the view that the special universal character of the international bill of rights required states to accept all its articles. Iraq argued that accepting reservations ‘would compromise the international conscience.’ Most Latin American states were concerned that a reservations clause would reduce the legally binding character of the covenants.
The Secretary-General at that time: ‘It is unacceptable that the UN itself, after proclaiming that human rights are inherent in the human person and therefore inalienable, should at the same time admit that any rights can be legitimately disregarded by means of reservations.’
States in favour of reservations took the stand that, when push would come to shove, there would ultimately be fewer ratifications if the possibility of reservations was ruled out. Besides the Soviet Union countries like China, Egypt, the U.S., and the UK defended this position.
Ordinary people
Governments had many other disputes during the process of negotiating the international bill of rights. One of the most fundamental was how human rights could be made real and meaningful in ordinary people’s lives. The majority of UN member states favoured some form of enforcement measures.
In 1947 a UN working group was unanimous that there should be a right of individuals and associations to petition the UN. The group proposed several other ideas, including an international court of human rights and a high commissioner. Many delegates warned that failure to adopt enforcement measures would undermine the human rights system.
But the UN majority faced opposition of some of the most powerful states, such as the United States, the Soviet Union and the United Kingdom. The emphasis remained on promotion of the concept of human rights, rather than on implementation of these rights. Only in 1993 agreement was reached on establishing the post of a High Commissioner. And an international court on human rights never materialised, although some would say that creation of the ICC could be seen as a limited step in that direction.
The distinguishing feature of human rights is the primacy of the individual in the face of organized power, such as the state. As a result, human rights can be subversive of organized power. To avoid that risk, many governments in reality supported human rights primarily as rethorical ideals – without accompanying means of enforcement.
Challenges
Let me reflect a little bit further on some of the challenges the universality of human rights faces today.
After the Cold War a sense of relief and optimism prevailed that was also reflected in the field of human rights. Initially hopes inside and outside the UN were high to substantially strengthen the human rights system. The Universal Declaration had linked civil, political, economic, social and cultural human rights as ‘the foundation of freedom, justice and peace in the world’.
When the debate over capitalism versus communism began to subside, the political and the economic faces of human rights finally seemed to come together, with democracy as overarching framework. The number of human rights groups and advocacy groups increased, international instruments such as the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child gained renewed attention. The commitment to ‘mainstream human rights’ was made throughout the UN system. And governments reaffirmed their commitments during a series of world summits.
But there still was a visible problem: the UN and the member states were intensifying their commitment, but where was the evidence in people’s lives? How did all of the human rights debates and initiatives actually help the people suffering most from human rights violations?
As has been well documented by human rights groups and UN organizations alike, the dramatic advance in commitments on paper was not matched by concrete improvements in human rights conditions worldwide. And there still is a vast gap between ambitions and realities on the ground, between rhetorics - not in the least from oppressive regimes - and practice, between legislation and application of the law, between promises and honouring promises. We should not be fooled by illusions of action and impact on the thin basis of words and paper resolutions. Implementation requires a lot more of our attention and investment.
Priority
The post-Cold War euphoria for human rights was rather short-lived. From China, Malaysia, Singapore, and other states the ‘Asian challenge’ emerged: the assumption that development should have priority over political freedom. That duties and discipline are more relevant than rights and entitlements. And the assumption that emphasis on the community was a key value to survival, while human rights as being too individualistic by nature would be destructive to Asia’s social and economic system.
Western states and human rights activists often dismissed these arguments as a rationale for state repression – which it often was. The Asian challengers in turn questioned the western bias in favour of civil and political rights that had been prevalent in the UN for a long time. They compared the economic success of the politically autocratic Asian countries with the economic failure of many formally democratic developing countries. While China was rightfully singled out by human rights proponents as one of the world’s worst human rights violators, others would point to its economic and social policies which raised hundreds of millions of people out of poverty.
The emergence of new trends – globalization, the war on terror, and increased frictions between the west and others on fundamental freedoms – has raised further fundamental questions.
Globalization
Globalization has had a considerable impact on the realization of human rights, particularly of economic and social rights. Yet human rights, which are meant to represent the highest normative values of global society, are often excluded from the legal and policy frameworks of globalization, as has been outlined by Normand and Zaidi.
The WTO for instance has mostly excluded human rights values from the global trade system. From 1995 to 2000, 170 cases were brought to the WTO dispute settlement process. In every case challenging environmental, human rights, or labour regulations, WTO panels have struck down these regulations for violating trade laws. Thus, while economic and social rights came to be accepted as a valid international concern, the means for their realization were often rejected.
Terror
The second major challenge has come through the ‘war on terror’, which in many governments reinforced the argument for the primacy of security of the national state. After 9/11, the - often theoretical - commitment to human rights and human development shifted rapidly to one stressing the need to fight terrorism and extremism.
As a result, the meaning of concepts such as freedom and democracy came under siege. Significant increases of human rights violations have been reported throughout the world in the name of counterterrorism by greater and lesser powers alike. The former U.S. administration for example has openly justified abuse of rights such as the freedom from torture and judicial due process.
Many states have restricted civil liberties and clamped down on domestic opposition. The human rights framework, and international law more broadly, has been weakened since it was considered irrelevant and incapable of dealing with the new war against terror.
Clearly, the U.S. under the previous administration, was not the only power which selectively disregarded the principles of human rights and international law. China, Russia, Pakistan, and a number of other countries have systematically violated rights in pursuing their domestic variants of the war against terror.
Fortunately the new American administration has decided to change course. But considerable damage has been done to the reputation and the prospects of the global commitment to protect human rights. The fallout at the UN can be seen in the politicized and polarized debates, previously in the Commission on Human Rights, and now in the Human Rights Council.
Debate
Part of this polarization is the heated debate on the individual freedom of religion and expression on one hand, defended by western countries, versus the objective of in particular islamic countries to protect religions as such against offensive remarks and actions and have defamation of religion accepted as a human rights concept. This debate is far from over and I believe we have to pull out all the stops to protect the human rights of individuals.
And a key development is of course the rise of new, self assured global powers, like India, Brasil, China with often different points of view on the handling of human rights.
Key question
I have given you an overview of only some elements in the debate on human rights and the universality of human rights over time.
Key question is how successful the concept of human rights has been over the last 60 years. Looking at the continuing, often gross violations by states and non-state actors, we may jump to the conclusion that our dream of universal human rights has escaped us – and that the UN human rights system is bound, sooner or later, to collapse under the weight of internal contradictions.
But that is too bleak a picture. Despite the lack of effective enforcement, human rights ideas have brought about a new awareness throughout the world and in doing so they have changed the nature of international relations. Human rights instruments and institutions have not, in themselves, made a sufficient mark on most peoples daily lives. But still, human rights principles as laid down in the universal declaration seem to be closer to a universal ethical consensus than any world religion, ideology, philosophy or legal system.
Understand
Understanding some of the reasons why the universality of human rights is being challenged and human rights are being disputed should enable us to better approach these challenges and disputes. Is it due to suspicion about our intentions? To lack of political will, to lack of capacity, to fear of change or fear to lose power? Fear for domestic radical movements?
We have to better understand our partners perspectives and motivations, without automatically accepting these perspectives and motivations. There seems to be a need to address the deeper problems within the human rights system – such as the lack of meaningful enforcement, the overall politicization of human rights by competing states and the lack of accountability for the institutions of globalization.
Some of the steps to consider include strengthened cooperation with moderate developing countries, including major powers like India and Brasil, restoring western credibility in the area of respect for human rights in our own region, balanced attention for civil and political and social,economic, cultural rights and more dialogue with grass roots organizations, local leaders and civil society.
I hope that today’s discussion will contribute to our efforts to safeguard universality and improve human rights for people all over the world.
I conclude by stressing that the human rights system that has been created since World War II is a man-made construction which makes it a project of high expectations, but also prone to human error. That gives us reason for restraint – but also for hope.