Contemporary Human Rights Challenges

The Universal Declaration of Human Rights and its Continuing Relevance

Carla Ferstman, Tony Gray, Carla Ferstman, Tony Gray

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351107112
• Edition: 1
• Topic: Droit
• Subtopic: Droits civiques en droit

The Universal Declaration of Human Rights (UDHR) was drafted by the UN Commission on Human Rights in the aftermath of the World War II in an attempt to address the wrongs of the past and plan for a better future for all.

With contributions from President Jimmy Carter, UNESCO Secretary General Audrey Azoulay and the former Archbishop of Canterbury Rowan Williams, this collection of essays, Contemporary Human Rights Challenges: The Universal Declaration of Human Rights and its Continuing Relevance, by leading international experts offers a timely contemporary view on the UDHR and its continuing relevance to today's issues.

Reflecting the structure of the UDHR, the chapters, written by 28 academics, practitioners and activists, bring a contemporary perspective to the original principles proclaimed in the Declaration's 30 Articles. It will be a stimulating accessible read, with real world examples, for anyone involved in thinking about, designing or applying public policy, particularly government officials, politicians, lawyers, journalists and academics and those engaged in promoting social justice.

Examined through these universal principles, which have enduring relevance, the authors grapple with some of today's most pressing challenges, some of which, for example equality and gender related rights, would not have been foreseen by the original drafters of the Declaration, who included Eleanor Roosevelt, René Cassin and John Humphrey.

The essays cover a wide range of topics such as an individual's right to privacy in a digital age, freedom to practise one's religion and the right to redress, and make a compelling and detailed argument for the on-going importance and significance of the Declaration and human rights in our rapidly changing world.

Section II

The rights of the individual

(Articles 1–11)

Introduction to Section II

Carla Ferstman

This section of the book focuses on what has become known as the first column of the Declaration – individuals’ rights and freedoms qua individuals. These rights, including rights to life, liberty and personal security; the prohibition of slavery, torture and arbitrary arrest and detention; rights to legal recognition, equality before the law, and effective remedies for violation of fundamental rights, have a strong and arguably predominant placement in the UDHR. They are concerned mainly with protecting individuals from unfairness, abuse of power and aggression directed at them mainly, though not exclusively, by the state.

At the time of the drafting of the Declaration, this group of rights was relatively well-recognised and reflected in a variety of legal systems around the world. This was particularly the case with prohibitions such as slavery and torture, described respectively by Dottridge and Ferstman. As such, the pillar on individual rights did not engender too much debate among the drafters, though its relative weight vis-à-vis other, more collective rights was perhaps more contested. Nevertheless, this pillar, like all other pillars of the Declaration, was influenced significantly by the then-recent horrors of World War II. For instance, Dottridge notes the importance of the atrocities committed against forced labourers in Germany, Japan and elsewhere, to the framing of the UDHR article on slavery. Similarly, Ferstman notes that Nazi medical experiments in concentration camps were in the minds of the drafters when developing the article on the prohibition of torture, and Bazyler and Nelson explain the role of the mass theft of property in the framing of Article 8 of the UDHR – the right to an effective remedy.

As with all aspects of the Declaration, the articles in this first pillar were drafted in language which is a product of its time. In the 70 years since the Declaration’s adoption, our thinking about the nature and content of rights, how and why rights are violated and what is required to guarantee their protection and enforcement has been subject to continued change. The chapters in this section of the book explore these evolutions, focusing on issues such as the role of ‘neutral’ language in circumscribing or containing individuals’ rights. This is a theme picked up by Hilsenrath and Hamilton in their consideration of the failure of the UDHR to make explicit reference to sexual orientation or gender identity. It is also picked up by Manjoo, who explains in her chapter that the framing of the UDHR in gender-neutral terms, “does not take specificity into account.” She argues that, “The consequence is that the particularity of women’s experiences and realities, including the ways in which women experience discrimination and/or are denied equality, or suffer specific violations because of their gender, is rendered largely invisible.” This she argues, “can then lead to de facto discrimination and the achievement of formal as opposed to substantive equality.” This is an area where there has been development following the adoption of the UDHR, with the adoption of a number of specialist treaties and declarative texts both at the universal and regional levels.

The chapters in this section also consider the progressive recognition that acts taking placing in ‘the private sphere’ impact on the realisation of rights and engage states’ positive obligations as the principal guarantors of the rights of their own citizens. The UDHR focuses on acts directly attributable to states, though human rights has progressively been understood to include state responsibility to act with due diligence in responding to and preventing violence committed by private actors. These extensions are considered in Ferstman’s and Manjoo’s chapters.

Another theme explored in the chapters is the wide gaps which remain between the ‘haves’ and the ‘have-nots’ which underpin vulnerability, discrimination and marginalisation and impede equal access to individual rights. In this respect, there is a constant interplay between the multiple forms of discrimination experienced by different sectors of society, the failure to realise economic, social and cultural rights and the capacity to implement civil and political rights. It is typically the most marginalised within societies and the individuals who are most socially and economically disadvantaged whose civil and political rights are least capable of being realised. This theme is explored by Dottridge, who recounts that when reporting to the UN Human Rights Council in 2017, the Special Rapporteur on contemporary forms of slavery indicated that discrimination (particularly against people of ‘low’ caste status, indigenous people and other minority groups, and also against migrants) and lack of trust in criminal justice systems continued to impede access to justice for victims of slavery, practices similar to slavery, servitude and forced labour. Similarly, as Manjoo notes in respect of discrimination and violence against women, the factors contributing to rights violations consist of “multiple concentric circles, each intersecting with the other.” She explains that:

These circles include structural, institutional, interpersonal and individual factors. The structural factors include macro-level social, economic and political systems; institutional factors include formal and informal social networks and institutions; interpersonal factors include personal relationships between partners, family members and within the community; and, individual factors include personality and individual capacities to respond to violence.

The declarative force of the UDHR can ring hollow if in the 70 years since the text’s adoption too little has been achieved to enable individuals to exercise practically their rights and to enforce the prohibitions. The challenge of enforcement is a constant theme of the authors in this section of the book; simply declaring certain conduct to be illegal or impermissible is not enough to prevent its occurrence. However, the authors’ analyses go further by also considering the important ways in which the UDHR has spear-headed the development of more specialist treaties and declarative texts (see chapters by Dottridge, Manjoo and Ferstman), later interpretive and implementation frameworks (see Bazyler and Nelson), as well as the progressive recognition of new categories of rights holders. For example, as Hilsenrath and Hamilton note, the Declaration, “has had a significant direct and indirect impact on LGBTI equality, most notably through the various legal instruments which have sprung from it at the global, regional and domestic levels.”

4 Article 3

Everyone [including women] has the right to life, liberty and security of person

Rashida Manjoo¹

Introduction

This chapter examines Article 3 of the UDHR and asserts that the realisation of the right to life, liberty and security of the person is not a reality in the lives of women in many countries of the world. It focuses particularly on the ultimate act of violence against women, i.e., the issue of gender-related killings of women. The manifestations, causes and consequences are briefly discussed, as well as the accountability deficit in respect of this human rights violation. This particular phenomenon is a reflection of the failure in addressing the numerous manifestations in a continuum of violence, which ultimately results in the killings of women. In addition, the absence, at the international level, of specific legally binding obligations on states to respond to, protect against and prevent violence against women broadly does contribute to the impunity challenge. The chapter concludes that the rights articulated in Article 3 of the UDHR are being violated in most countries, despite some positive legislative and programmatic developments at the national level.

Rather than being identified as a new form of violence, gender-related killings are the extreme manifestation of existing forms of violence against women. Such killings are not isolated incidents which arise suddenly and unexpectedly, but are the ultimate act of violence which is experienced in a continuum of violence. Women subjected to continuous violence, and living under conditions of gender-based oppression and threat, are always on ‘death row, always in fear of execution.’ This results in the inability to live, and is a major part of the death process when the lethal act finally occurs.² The discrimination and violence which is reflected in gender-related killings of women can be understood as multiple concentric circles, each intersecting with the other. These circles include structural, institutional, interpersonal and individual factors. The structural factors include macro-level social, economic and political systems; institutional factors include formal and informal social networks and institutions; interpersonal factors include personal relationships between partners, family members and within the community; and individual factors include personality and individual capacities to respond to violence.³

The principles of dignity, equality, freedom, justice and peace underpin the UDHR. Article 2 of the UDHR states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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.” Thus the UDHR applies equally to everyone without distinction, which means that no individual may be discriminated against or hindered from enjoying her or his human rights. Non-discrimination is one of the crucial values in the work for the realisation of human rights, and this aspirational goal is reflected in many countries’ constitutions. Of relevance to the issue of gender-related killings of women, the UDHR includes the right to life, liberty and security of the person in Article 3, and the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment in Article 5. In linking Articles 3 and 5 to Article 2, it is clear that these rights apply to all women and girls, without distinction, which is crucial for a life free of all forms of violence, thereby reinforcing the norms on the promotion and protection of equality and non-discrimination rights of women.

The UDHR is framed in general terms and facially it can be considered a...