We are pleased to welcome this guest post from Thamil Ananthavinayagan, a PhD researcher at the Irish Centre for Human Rights, Galway
“(…) Iuris consultus factus causam
suorum ita dixit ut accusator fieret ipse dominorum (…)“
– Anthony Bowen, in his oration on the occasion of the conferring of honorary doctarate to Nelson Mandela at the University of Cambridge
On the 10th of December 1948 the United Nations (hereafter: UN) General Assembly adopted the Universal Declaration of Human Rights (hereafter: UDHR), the first codified document setting out the universal principles of human rights and the foundational document for the United Nations human rights system. It is the birthday of human rights.
Two years later, in 1950, the United Nations General Assembly declared this December 10th as Human Rights Day, while the world was still recovering from years of war that devastated the landscapes of our cities and our souls. The UN put forth this declaration that recognized the ramifications of human suffering and injustice, and called for December 10th to be a day to celebrate the inherent rights of every person, everywhere. While the UDHR is a non-binding document, its adoption marked the advent of human rights treaties to follow, launching human rights dialogue and sustained efforts to implement human rights worldwide. It was, is and will be a document for: progress.
Cultural relativism and realistic pessimism
The international human rights law regime that emerged over the past 70 years was the vehicle for the individual rights to mushroom. However, human rights were subjected to relativism, namely cultural relativism. While in the opening years of the 1950s cultural relativism was the oppressive language of the Western colonial powers -which resisted any attempt to extend human rights to their colonies- cultural relativism became the official ideology of Asian and African diplomats and leaders the 1980s and 1990s. The rise of this ideology must be associated with the rise of dictatorships- as the possibility emerged that the human rights system might cause their embarrassment. However, Professor Louis Henkin commented many years ago already that “the rights of the Universal Declaration are politically and legally universal, having been accepted by virtually all states, incorporated in to their own laws, and translated into international legal obligations.”
Against this background, what has changed, what is the current state? We still hear, read and see daily human rights violations. In Ireland, in Europe and all over the world. Like every day, one may question if this day is a day of celebration – or of depression. Significant numbers of human beings in Ireland have suffered grave deprivations due to the recession. Only two days ago we became again witnesses of another tragedy in the Mediterranean Sea: six Afghani children -among them a six months old baby- drowned off the shores of Turkey on their desperate journey to Europe. The harrowing war in Syria is deforming the country since 2011, resulting in a death toll of more than 250.000 human beings. In our land, Ireland, women’s rights to health and to life are violated through legal or practical restrictions on abortions and reproductive health. Thousands of human beings are still missing six years after the end of the vicious civil war in Sri Lanka. A rising number of Gaza’s children need to make an earning for their families on the streets of the war-torn strip of land instead of sitting on school benches to receive education. LGBTI people in Uganda are constantly under threat in a hostile climate generated by governmental officials and religious extremists. Poverty, then again, is one predominant factor that corrupts economic and social rights of many individuals around the world. Meanwhile, it is questionable if we will even ‘celebrate’ this auspicious day in hundred years as climate change is unfolding and pulls the carpet from under human existence. In any case, the list of human rights violations is far from being exhausted.
Very cynically, the 10th of December was also the day when in Maurice Baril, military advisor to the United Nations Secretary-General and head of the Military Division of the Department of Peacekeeping Operations, recommended in 1994 that UNAMIR shall stand down in face of the Rwandan Genocide.
The contested nature of universal application of human rights
The very distinguished international scholar Professor Anthony Anghie argues that international institutions such as the IMF and the World Bank “attempted to use an amended version of human rights law to further their neoliberal policies in the guise of ‘good governance’, rather than enabling real empowerment of Third World citizens.” He considers human rights law, in this regard, a Trojan Horse for the furtherance of neoliberal agenda. However, we shall not forget that when reading the records of the debate on the UDHR in 1948 the active proponents of the Declaration were representatives of Third World countries, such as Mrs Meron, Sir Zafrullah Khan, Charles Malik of Lebanon, to name only a few. In the final vote on the adoption, twelve Western states supported the text, but nearly three times that number, thirty four, supportive governments were from states which would now be listed in the Non-Aligned Movement. Drafted by representatives of all regions and legal traditions, the UDHR has stood the test of time and resisted attacks based on “relativism”. The Declaration and its core values, including non-discrimination, equality, fairness and universality, apply to everyone, everywhere and always.
Professor Eric Posner rendered a huge service to human rights pessimists when he wrote not too long ago, inter alia, that there is little evidence that countries that ratify human rights treaties improve their human rights performance. This assessment contradicts with the academic contribution of Risse, Ropp, and Sikkink’s joint work “The Persistent Power of Human Rights”, as this book, inter alia, points to increased pressure exerted successfully by civil society actors on state structures.
Human rights law is, contrary to relativists, empowering human rights defenders all over the world. Prof. Michael O’Flaherty is correct when he asserts that there might be flaws in international human rights law to address all grievances. But, in the end, it is about the concerted effort to strengthen the human rights system to address violations, rectify the flaws, achieve a high standard of human rights protection and promotion and, subsequently, work towards the full realization of human rights embedded in peace. In this respect, the UN has the unique capacity to further human rights advocacy, protection and promotion. It needs to be backed, however, by the credible threat of human rights action, isolated from politicization and institutional distortion.
The struggle for human rights is far from over: we, the community of human beings, are the guardians of the UDHR and its beneficiaries alike. We must reclaim the ownership over the UDHR. It is not only about the talk on the law, advocacy of the rights- it is also its application through the law and action. We must know where we need to shop, where we spend our holidays. And not only that. Human rights is also about the purchase of a suspended coffee. Human rights echoes the call for morality. Louis Henkin argues that “(…) the political idea of human rights is rooted in interpersonal morality. (…) The question is whether the moral values of human rights are universal, whether the specifics in the catalog of rights in the Universal Declaration of Human Rights respond to that common morality. The important issue, moreover, is not even whether human rights reflects a common morality, but whether the morality it reflects, now universally politically prescribed, is culturally acceptable or will be rejected as foreign matter.” It is now up to scholars and activists to turn human rights, speaking with Juergen Habaermas, into a matter of the interior. According to Habermas human rights were developed in response to specific violations of human dignity, and can therefore be conceived as specifications of human dignity, their moral source. Human rights, he argues further, are “Janus-faced’, on side related to law, the other to morality. Only the membership in a constitutional political community can protect, by granting equal rights, the equal human dignity of everybody.
It is fair to say that there are two custodians of such a political community, namely -firstly- the scholars: those, who establish, examine and interpret the law. Being a human rights scholar therefore not only means to be an idealist, a dreamer in the Ivory tower, but also to be resilient and determined in advocacy for the voiceless. And -secondly- human rights activists. Being a human rights activist is to stress morality, meaning to take action and fall repeatedly- but to get up just one more time than the fall.
Human rights is a vision, a vision to see the invisible. Making the law feasible, accessible and a reality for all. We need to stand firm, speak the truth even if our voice shakes and keep moving forward, as human rights is about progress.
Or, to put it like Martin Luther King Jr.: “If you can’t fly then run, if you can’t run then walk, if you can’t walk then crawl, but whatever you do you have to keep moving forward.”