Challenges in International Human Rights Law

Volume III

MennoT. Kamminga, MennoT. Kamminga

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351572491
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The main challenges within international human rights law are generally thought to be in the fields of transitional justice, non-state actors, terrorism, development, poverty and environmental degradation. This volume of articles not only covers these mainstream challenges but also a wider and more systematic range, including justiciability of social and economic rights, extraterritoriality, health care and investment arbitration. The key literature selected for this collection includes articles that have appeared in mainstream journals and books from leading publishers as well as papers that have appeared in lesser known journals, hard to find books and UN documents. Some of these are classic essays whilst others are more recent additions that reflect the current state of the debate. The papers are put into context by a specially commissioned introduction by the volume editor. This volume is an invaluable resource for human rights lawyers in search of the key literature in fields outside their own specialization as well as for students, researchers and lecturers seeking an overview of the challenges in human rights law.

Part I
Contents and Scope

[1]
On the Universality of the Universal Declaration of Human Rights

Wiktor Osiatynski

In 1948 the leaders of the world hailed the Universal Declaration of Human Rights as a set of standards to guide humankind. The Declaration gave a new meaning to the very word “universalism.” Instead of a universality of colonial allegiance or of faith imposed by swords and religious symbols, humankind was to be bound by a set of universal standards that were agreed upon by the leaders of free nations and that gave hope to leaders of those people striving for independence and self-determination.

Fifty years later, the very universality of human rights has been fiercely challenged. Human rights were often presented as the ideology of the West, as a secular “Western religion,” as a tool of Western imperialism, or as a Western neocolonial “ideology.”¹ Such challenges originate from various quarters in the West, East, and South. Their common denominator is skepticism towards an understanding of human rights as universal standards.

The most common challenge is that the idea of human rights is essentially Western, and not universal. It has developed in the West and was imposed by the West on the rest of the world, first in 1948, and later by the United Nations system and other means of global domination, not excluding force. In a less drastic formulation, a claim is made that the West uses force to impose human rights. In its more radical version the West is accused of using force to impose the philosophy of human rights, and human rights is the new tool in the Western crusade against the South.

A related challenge is that the idea of human rights does not help to solve the most important problems of non-Western societies. The extreme of which is that the idea of human rights is seen to be in conflict with important developmental goals of non-Western nations.

Finally, the critics say that despite the formulations of the Universal Declaration of Human Rights the idea of human rights is not only alien to non-Western nations and their people, but it is even incompatible with traditional cultures, religions, and societies outside the West.

This chapter deals with the first challenges to the idea of human rights and their history. It also discusses the Universal Declaration of Human Rights from the perspective of the origins of different ideas and values that were synthesized in the document. I hope that recalling some basic facts from more than fifty years ago and analyzing the sources of human rights will be helpful, particularly in the discussion of economic and social dimensions of human rights.

1. The Origins of Human Rights

First, we need to distinguish between the eighteenth-century idea of individual rights and the twentieth-century concept of human rights. The former was the result of a long train of thought and of institutions that were in existence before the Magna Carta of liberties in 1215; which then assumed the form of liberties and freedoms acknowledged during the Renaissance; received impetus as a reaction against absolutism; to find their final formulation during the Enlightenment. The idea of individual rights was thus definitely Western, and even though some philosophers, like Immanuel Kant and Thomas Paine, talked about the rights of all men, no one attributed universality to eighteenth-century individual rights. They were the rights of white males, to be further limited to white male property owners. The rest, including white women and workers as well as the people of the colonized world outside Europe, were treated, at best, as the objects of white men’s benevolent paternalism, at worst, as simply objects and slaves. Concepts of progress, evolution, Darwinism, and eventually racism provided justification for the superiority of white males.

The West did not try to impose the idea of individual rights on the rest of humankind. To the contrary, it positively acted to prevent other people from enjoying the rights and freedoms restricted for itself as master. In the nineteenth century even the West turned its back on this idea and replaced it with utilitarianism and majoritarian democracy or with such collectivist ideologies as nationalism and socialism.² Outside Europe, the West ruthlessly violated the rights of indigenous populations, the victims of colonialism and imperialism. Within the West, it violated people’s rights in genocidal wars and in the Holocaust.

The idea of rights reemerged during World War II, reformulated, however, in terms of human rights. The term human rights first appeared in the Atlantic Charter issued by the leading Western powers at the beginning of 1942. The Allies stated the purposes of the war to be the defense of “life, liberty, and religious freedoms” as well as the worldwide preservation of human rights. The Charter was aimed at the world, i.e., it was directed to potential members of a worldwide coalition that was to join the Allies in the war against the countries of the Axis, primarily Germany and Japan. The Charter’s usage of the term “human rights” could be perceived as a promise by the West to extend the benefits of “Western” liberty to the non-Western allies. From the point of view of the emerging concept of human rights, of crucial importance was the fact that World War II was the world war, and a number of non-Western nations were fighting together with Western democracies for liberty against fascism and its allies.

The idea of human rights was upheld in the Charter of the United Nations. Along with the Convention on genocide, human rights were to codify natural law that was used, with some reluctance, to try top Nazi leaders at the Nuremberg trials. Human rights were also to protect people as individuals from abuses by nationalist or collectivist nation-states. They were to limit the risk that legitimately elected, i.e., formally democratic, governments might commit crimes and cruelties in the name of majority rule, as was the case with Germany under Hitler. While the works in the Economic and Social Council focused on enshrining in human rights documents at least some of the progressive labor legislation that had been developed by welfare-state reformers and accepted by the International Labor Organization (ILO) between the two wars.

All these rights had undoubtedly Western origins. However, now, they were to be treated as truly human, i.e., extended to all people of the world. This “universalization” of rights was later cited by critics who claimed that, already in 1948, rights were imposed by the West on the rest of the world. The defenders of human rights rebut by pointing to the good intentions of the drafters who wanted to prevent the repetition of its own practices, for there had been all too many atrocities committed by the Western powers against non-Western people. In this sense human rights were to be seen as the self-limitation of dominant powers, similar to the way a constitution can be perceived as the self-limitation of those who wield power within a state. It has also been suggested that the drafters of the UDHR wanted to protect the rest of the world from committing atrocities similar to those which had been recently committed by the Europeans.³

A closer look at the origins of human rights shows an even more complex picture. While the idea of human rights was attractive to Western intellectuals, preparatory work on human rights was not strongly supported by their governments, particularly the Great Powers.⁴ Each of which had a record which diverged from the proclaimed standards: the Soviet Union had domestic terror and the Gulag; England and France had colonies; and the United States had racism. The Great Powers also wanted to protect their supremacy in the post-World War II world and used the concepts of domestic jurisdiction and state sovereignty to preclude possible interventions in their affairs by less powerful nations. Therefore, for the Great Powers, “The human rights project was peripheral, launched as a concession to small countries and in response to demands of numerous religious and humanitarian associations that the Allies live up to their war rhetoric.”⁵

In Dumbarton Oaks, in the summer of 1944, the Great Powers made plans for the future international organization that would serve peace, security, and international cooperation. They “agreed to their opposition to any meaningful provisions concerning international human rights.”⁶ While the United States wanted to include human rights into the general principles of the Charter of the United Nations, the Soviets claimed that such provisions are “not germane to the main tasks of an international security organization.”⁷ It was China that emphasized the need for the international organization “to be able to enforce justice in the world” and agreed “to cede as much of its sovereign power as may be required.”⁸ Wellington Koo, a Chinese representative, also raised issues concerning the right of all people to equality and non-discrimination, as well as the need to secure social welfare in the future world order. The Soviet Union and Great Britain outright rejected the Chinese proposals and all three powers (the United States included) “shared a deep concern over ’the equality of races question specifically and the larger issue of human rights in general.”⁹ The United States still insisted on a general statement about human rights, but agreed that it be mentioned in the context of social and economic cooperation. The Chinese proposal about racial equality was completely deleted from the Dumbarton Oaks document which was written in the language of state powers rather than the rights of individuals.

At the beginning of the San Francisco conference in April 1945, it was obvious that the Great Powers will not foster the idea of human rights.¹⁰ During the ...