HOW FAR IS THE IDEA OF UNIVERSAL HUMAN RIGHTS AN ILLUSION?
HOW FAR IS THE IDEA OF UNIVERSAL HUMAN RIGHTS AN ILLUSION?
The modern notion of human rights was born in the direct aftermath of World War II. It is indeed with the discovery of the atrocities committed by the Nazi forces that a strong "Never Again" political stream arose in the international community, culminating with the adoption in 1948 of the Universal Declaration of Human rights. Since that day, human rights have been established as a major and legitimate focus of international attention. In the half century since, hundreds of universal, regional or national agreements governing human rights issues have arisen. Yet, in the meantime, major breaches of human rights have been witnessed from South America (Chile, Argentina) to Far East Asia (North Korea, China) on what appears to be a worldwide scale. Even more frightening is the constatation that these breaches are often committed in or by states that are parties to one or more treaties on Human Rights. Such a situation could have been understood in the light of the statu quo existing during the Cold War, when the ideological division of the world was the first concern. But as stated by Farer & Gaer: In the wake of the Cold War the UN has finally become an agent for democratisation and minority protection. This paradox existing between the growing importance of Human Rights and their constant breaches is made even more surprising by the fact that Human Rights became in the century's finale a pervasive global cause, culminating in the most unusual of modern wars, the NATO intervention in Kosovo[1] and the American expeditions in the Middle East (Afghanistan and Iraq). As never before, the foreign political stage is seemingly dominated by claims for basic political, individual and even social and economical rights (with the growth of an anti-globalization movement). So strong is that tendency, that Human Rights offences are now hunted down whether they are past (for example the attempt to bring Augusto Pinochet to justice) or more recent (in Rwanda and ex-Yugoslavia). One of the best examples of the importance of that concern is to be found in the development of the Belgian legal doctrine of universal competence for the Belgian courts. But the attempts to bring to trial actual leaders of different countries and the potential diplomatic clashes that would have resulted (in April 2003 a request was even brought against the U.S president Georges W. Bush) convinced the Belgian authorities to deprive that concept of substance by raising the level of requirements for such actions and overcomplicating the procedure.
The reason of the existing discrepancy between the position of the international opinion and the still going breaches of Human Rights mainly lays in the difficulties faced when it comes to enforce these human rights. As stated supra, perpetrators of Human Rights violations are often the countries that are bound by treaties to respect them or even that are at the origin of those regulations. Iraq, Rwanda and Yugoslavia had all ratified the Convention on the Prevention and Punishment of the Crime of Genocide, before being themselves the stages of such genocide. The USA and the United Kingdom ...
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The reason of the existing discrepancy between the position of the international opinion and the still going breaches of Human Rights mainly lays in the difficulties faced when it comes to enforce these human rights. As stated supra, perpetrators of Human Rights violations are often the countries that are bound by treaties to respect them or even that are at the origin of those regulations. Iraq, Rwanda and Yugoslavia had all ratified the Convention on the Prevention and Punishment of the Crime of Genocide, before being themselves the stages of such genocide. The USA and the United Kingdom themselves have often been pinpointed as perpetrators of gross breaches of Human Rights, in the penitentiary sector for example (the first one for the constant application of death penalty and the unfairness of the American judicial system, the second one for the detention conditions of Northern Irish prisoners).
Moreover, according to Oona Hathaway[2] it is possible that countries with worse Human Rights practice are more inclined to ratify Human Rights treaties. Ratification of a Human Rights treaty, after all, allows a government to send a message to the world that it is committed to the principles outlined in the treaty. This message may be honest and sincere. But as the examples of Iraq and Afghanistan suggest, if the treaty is poorly monitored and enforced, countries face little or no penalty for failure to match rhetoric and action. This lack of enforcement comes in light with even more accuracy when it comes to policing the great powers in their misbehaviour: there is simply no possibility of forcing the USA, China, Russia, Great Britain or France into respecting their obligations.
Some solutions to the problem have already been found particularly with the growing influence of some effective regional agreements (the European Convention on Human Rights for example), the growing influence of the non governmental organizations (Amnesty International, Doctors without Borders) and the already quoted trials of war criminals from Kosovo and Rwanda. Nevertheless, these examples are exceptions in a world where Human Rights are hardly enforced.
US ambassador Morris Abram once described the Universal Declaration of Human Rights and the idea of Human Rights as little more than an empty vessel into which vague hopes and inchoate expectations can be poured, a dangerous incitement, and even preposterous. With as much disregard but much more objectivism, the soviet delegate Andrei Vyshinsky used to say the Universal declaration was a letter to Santa Claus. Neither Nature, experience, nor probability informs these lists of entitlements, which are subjects to no constraint except those of the mind and appetite of their authors[3]. Indeed, reports routinely pinpoint the promoters of Human Rights as perpetrators of consequent violations of those rights. Yet, there is no Human Rights enforcement system apart from the great powers, decisively the USA. Being judges and parties, these powers do little to comply with the international standards of Human rights in their behaviour.
In the Reagan era, the USA refused to obey the orders of the world court to withdraw from Nicaragua and pay reparations, on the basis its intervention in the country was military and not humanitarian, therefore contrary to Human Rights principles. But the American violations of Human Rights are not only occurring on the international stage. The American National Justice Commission reported the role of the government and private industry in stoking citizen fear, exploiting latent racial tension for political purpose with racial [not to say racist of course] bias in enforcement and sentencing that is devastating black communities, creating a racial abyss and putting the nation at risk of a social catastrophe[4]. Chomsky quotes the American criminologists describing the situation as the American Gulag or the new American Apartheid. The statistics are indeed eloquent enough: there are more black males in prison than in University and African Americans are the majority of the American prisoners. America also maintained the black population in a dreadful system of segregation more than 20 years after the proclamation of the Universal Declaration, depriving part of its own population of its civil and political rights.
But America is not the only power disregarding Human Rights. The UK failed in complying with Human Rights when facing terrorism in Ulster, abusing of torture and inhuman conditions of imprisonment. France took at the end of 2002 a legislation banning mendacity and assimilating it to an offence (beggars are now facing huge fines or the risk of being jailed), decision that is dubitably concurring with the ideals of Human Rights.
The complete record of Human Rights abuses by those supposed to enforce and protect Human Rights is to long and fastidious to be given here, but these breaches are the perfect example that the moral example given by the powers is contestable. And without that moral example and a proper conduct in the matter of Human Rights, the very idea of a worldwide enforcement of Human Rights looks like an unreachable utopia.
Enforcing Human Rights is still a goal to be reached. Despite the existence of international criminal courts, born in Nuremberg and Tokyo, actually dealing with war criminals from Yugoslavia or Rwanda, this goal is far from being attained.
Nowadays, in a world rid of the Cold War, the enforcement of these Rights became the favourite excuse for war triggering, depriving this noble idea of its substance.
The inexistence of a global civil society, of independent organs in charge of the matter; the non-respect of the UN Charter and UN Human Rights convention; the contempt for the rules of international law or the wild behaviour of the champions of Human Rights are all causes of the inexistence of a proper system for enforcing Human Rights. Moreover, the dramatic state of poverty in with the Third World is crawling, leading observer to say bluntly that in those countries, the respect for Human Rights comes after the breakfast is raising considerable obstacles for the implantation of such principles.
To conclude with, one must reckon that la raison dtat (the political imperatives) is too often interfering with the possibility of enforcing Human Rights.
This fact is to be regretted for those rights which have priority over other rights may have an extensive core which is inviolable even in state of emergency[5].
Nevertheless, a practical example of Human Rights enforcement is to be found in the European experience. On this model, observers are often recommending the three following way of enforcing Human Rights: Customary international law based on protection established through the UN Charter, universal treaty regimes collectively called the International Bill of Rights in some part reliant on enforcement by UN organs, increasing of the influence of regional treaties as the ECHR.[6]
25/05/2007
[1] Karl Meyer, enforcing human rights, in www.worldpolicy.com.
[2] Oona Hathaway, Global Legal Information & Human Rights in the 21st Century, in www.worldpolicy.com
[3] Both quoted by Noam Chomsky in Rogue States, Pluto press, 2000, chapter 9, p. 112-113.
[4] Steven Donziger, The real war on crime: The report of the National Criminal Justice Commission, HarperCollins, 1996.
[5] Tom Campbell, Realizing Human Rights in Human Rights: from rhetoric to reality, Blackwell, 1986, p.11.
[6] www.udhr.org
