Judge Dennis Davis
The UN Declaration of Human Rights: What Does it Say to Us Today?
Judge Dennis Davis and Professor David Peimer | The UN Declaration of Human Rights What Does it Say to Us Today | 07.09.21
- Okay, we’re away. So good evening or good morning or afternoon, whatever time you are listening to this particular lecture that David and I are going to be doing. And it’s a lecture, basically, as you can see from the announcement here, the heading, it’s about the UN Declaration of Human Rights and the further question of what does that declaration have to say to us today?
There’s much that can be spoken about it and we’re going to sort of deal with this in a series of ways. I’m going to give you a bit of the history and the content, particularly by way of the video that we will show for about six minutes, which I think is extremely instructive. And then David will talk a little bit will be a bit of a surprise for you all. And at the end of it, I will make some comments about the implications today by virtue of a very interesting report of a panel of experts that was shared by Gordon Brown, and which published a book in 2016 called “The United Nations Declaration of Human Rights,” which I should tell you, you can get simply by just downloading it for free, it’s instructive text, but I’ll get there.
So the basis, I think while we were asked to talk about the UN Declaration of Human Rights, is because as you recall, David and I gave a series of lectures on the Nuremberg Trials. And one of the take home points from those two lectures was effectively this, that for the first time the world now had developed as the beginnings the structure of a international human rights in which countries could be held accountable for a range of crimes against humanity, of course as you may remember, there was a debate between Lauterpacht and Lemkin, which we documented, and which Philippe Sands, a wonderful interview that he did for us, spoken about–
Dennis, do you mind if I interrupt you for a minute? Your sound’s a little crackly, do you mind just moving a little further back from the mic? Let’s see if that works.
Okay, is that better? Is that better now, Lauren?
[Lauren] Yes, it seems to be.
Okay, sorry about that. Philippe Sands had given obviously us, a lecture, which was based on his book, “East West Street,” in which there was of course a great debate about the genocide versus crimes against humanity. But the simple point I want to make, is that flowing from that, there was a realisation post the Second World War, that something had to happen with regard to… A standard of governance, which were to ensure that to some large extent we would not repeat the horror of the Second World War in general Holocaust in particular. And so of course, the United Nations came into being in ‘45. '46, in 1946, which was the crucial date for our purposes under the UNESCO, Jacques Maritain, the French philosopher, assembled what was called a
So in 1946, under the banner of UNESCO, Jacques Maritain assembled what was called the Philosophers Committee to identify key theoretical issues, which were important in the framing of what might be called a declaration of human rights. And the simple takeover point was in 1947, a United Nations Committee and Human Rights was then authorised to formulate a preliminary drop, which would effectively be a bill of rights. And 18 members were constituted, chaired by Eleanor Roosevelt, to whom I will come back presently.
The simple point was that on the 10th of December, 1948, the United Nations, after a massively long debate between September and December '48, the 56 then members voted apparently 1400 times in various clauses. Until finally in 1948, on the 10th of December of that year, which of course we now know as Human Rights Day, they passed the general assembly meeting in Paris. They voted in favour of the United Nations Declaration of Human Rights. I should tell you, there were eight abstentions, of which South Africa, naturally, under Jan Smuts quite bearing in mind that he had had some role in the drafting of the charter, abstained.
And they, South Africa, were accompanied by the sort of heroic defenders of human rights, including the Soviet Union, Poland and Saudi Arabia. But the rest all effectively passed this document, which became the United Nations Declaration of Human Rights. I want to say quite a bit more about it, but to give you some texture in this particular regard, I want to show about five and a half minute documentary, which will give you the taste, texture, and scope of what I’m talking about. So let’s just watch this and then I’ll pick up from that.
- [Narrator] Where after all do universal human rights begin. After World War II, it was clear that the horrors of the war should never be allowed to occur again. Founded in 1945, the United Nations sought to prevent future atrocities by affirming in its foundational charter faith in fundamental human rights. The dignity and worth of the human person, and a commitment to promote better standards of life in larger freedom.
In the years that followed, member states of the United Nations strived to develop the human rights provisions of the charter and capture them in a single document. It took three years to agree on a common vision. On the 10th of December, 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations.
[H.V Evatt Voiceover] Still, it is the first step in a great evolutionary process. It is the first occasion on which the organised community of nations has made a declaration of human rights and fundamental freedom. And it has the authority of the body of opinion of the United Nations as a whole. And millions of people, men and women and children all over the world will turn for help and guidance and inspiration to this document.
[Charles Habib Malik Voiceover] While history alone can determine the historic significance of an event, it is safe to say that the declaration before us may be destined to occupy an honourable place in the procession of positive landmark in human history.
[Narrator] The declaration consists of a preamble, and 30 articles. With Article 1, powerfully proclaiming that all human beings are born free and equal in dignity and rights. No discrimination, right to life, liberty and security. No slavery, no torture or cruel, inhuman or degrading treatment or punishment. Equal protection of the law, no arbitrary arrest, detention or exile, fair and public hearing. No arbitrary interference with privacy. Right to freedom of movement, right to seek and enjoy asylum.
Right to a nationality, right to marry and to found a family. Right to property, freedom of thought, conscience and religion. Freedom of opinion and expression, freedom of peaceful assembly and association. Right to take part in government. Right to work. Right to rest and leisure. Right to food, clothing, housing, medical care and social services. Right to education. Right to participate in cultural life.
[Zeid Ra'ad Al Hussein Voiceover] These human rights are not country specific. They are not a reward for good behaviour or particular to a certain era or social group. They are the rights of people of every colour from every race and ethnic group, whether or not they have disabilities, citizens or migrants, no matter their sex, their class, their cast, their creed, their age or sexual orientation.
[Narrator] The declaration has generated action for human rights protection in many ways. It has inspired hundreds of human rights instruments that together, constitute international human rights law, and a number of international bodies and mechanisms for human rights protection. The principles of the declaration have supported the decolonization struggle and have been enshrined in the constitutions of the newly established countries which have joined the United Nations.
The declaration has inspired national and regional human rights protection systems, including legislation and institutions. And it continues to guide the work of human rights defenders and advocates worldwide. Today, the declaration is available in more than 500 languages and dialects, and it has obtained the Guinness World Record for the most translated document in the world. The 10th of December, the day on which the declaration was adopted, is celebrated each year as human Rights Day. The declaration emphasises the relevance of human rights in our daily lives.
[Eleanor Roosevelt] Where after all do universal human rights begin? In small places, close to home, so close and so small that they cannot be seen on any maps of the world, yet they are the world of the individual person, the neighbourhood he lives in, the school or college he attends. The factory farm or office where he works. Such are the places where every man, woman, and child, seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.
So there are a couple of aspects that I’d like to touch on today. Firstly, if we could get the next little clip up there. Yes, that one. I’ve got a quote out from Henry Laugier, who was the Assistant Secretary General for the United Nations at the time. And you’ll see that this particular quote essentially suggests the mandate. The mandates that he gave the commissioners, 18 commissioners.
“You will have before you The difficult but essential problem to define the violation of human rights within a nation, which would constitute a menace to the security and peace of the world and the existence of which is sufficient to put in movement the mechanism of the United Nation for peace and security. You will have to suggest the establishment of machinery of observation, which will find and denounce the violation of the rights of man all over the world. Let us remember that if this machinery had existed a few years ago, the human community would’ve been able to stop those who started the war at the moment when they were still weak and the world catastrophe would’ve been avoided.”
And that was the mandate. Now, if you look at the 30 rights that were described to you in the clip we gave, it is… When I went over it again, quite remarkable. Because it doesn’t just… It constitutes something which human rights lawyers would call first, second, and third generation rights. Probably in the main first and second generation. Let me explain. What I’m referring to, is that the United Nations Declaration of Human Rights enshrined within it, all of the fundamental political rights which are relevant and essential if you wish, for a democratic society to flourish. Maybe that’s putting it too strongly, to actually just exist.
But there is more. Well, of course you would’ve noticed if you looked at that… You will see in there, that there were provision of rights to work, of food and shelter and arranged therefore what we today call sex, social and economic, rights. Cultural. second generation, rights. Much more sophisticated in a way, because they went beyond the traditional liberal idea of just political rights. The notion being that you could not have a democratic state, unless to a large extent, you were able to provide everyone within the society, with the basic means to survive meaningfully. Substantively. Water, health, education, shelter, the right to actually practise one’s cultural, religious belief in the manner in which the particular individual wish.
I was reminded, reading this yet again, of a comment made by my late friend. In my view, the most distinguished public lawyer that South Africa produced in the post-war generation, Etienne Mureinik, tragically died too young. And who once said, when we were negotiating the constitution and a whole… For South Africa I might add, and a whole lot of people who essentially had been brought up with the United States as kind of you wish, first generation rights, just political rights. Or some within various political parties in South Africa who only saw it that way.
So he said as we were negotiating this, “what do you really mean therefore, is you have the right to vote, but you’ll have to get up from living in the velt on the pouring rain, without any shelter, any food and anything else for that matter. And we will call that a democracy.” And Etienne point was absolutely exactly that, which was captured in the United Nations declaration of Human Rights. But inextricably, social and economic rights were as important as political rights. You may want to say, and I would want to argue this, that essentially the vision, to some extent of the social democracy.
Now that may well mean that it takes on an entirely different model. In the year 2021 in 1948. But the fact is that was the vision that was envisioned. Now there is one other aspect about this that I want talk about, which is of course at the same time, the role of Eleanor Roosevelt, an utterly remarkable role that she play in the constitution of the Universal Declaration of Human Rights. Roosevelt dates were 1884 to 1962. We all know that she married FDR and we also all know that after his affair with Lucy Mercer back in 1918, she herself decided to carve out her own political career which she did. With quite a remarkable success.
She was the first chair of the United Nations Commission on Human Rights as I’ve indicated. It was she who ultimately chaired the committee that was instructed by to do the necessary. And some years later she chaired Don Fitzgerald Kennedy’s Presidential Commission on the status of women. In short, anybody who reads this particular history will have to accept, and I hope you all will, that her role was an utterly remarkable one in moulding it all together. I have spent some time talking about the social and economic rights. It is interesting that in the acceptance of these rights as part of the broad framework of the United Nations Declaration, Eleanor Roosevelt managed to expand quite remarkably the support of John Foster Dulles.
He was a delegate, a Republican delegate, eventually became Secretary of State under Eisenhower. But who is very conservative and who resisted much. But Roosevelt managed to talk him around, because he was a Catholic. And somehow was able to persuade him that his Catholic beliefs should in fact support the idea of the social and economic rights, to which I’ve made reference. A remarkable reflection of her ability, someone who’d never gone to university, but her ability to actually deal with all of these complexities in the success that she did. So Eleanor Roosevelt, was really therefore central to the issue. And I’ve got a little quote from her, it does come up in the video too, in which she is quoted as saying, “Where after all do universal human rights begin? In small places, close to home, so close and so small, that they cannot be seen on any maps of the world.
Yet they are the world of the individual person, the neighbourhood he lives in, the school or college he attends, the factory, farm or office where he works.” It’s such an interesting insight, 'cause those of you who know your will know that there’s a famous Tom Riddick story about the man who wants to change the world and to cut the story down, eventually when you stop to change the world with yourself. And Roosevelt understood this. That in fact if we were going to actually have a society which embraced human rights in the manner in which the Universal Declaration Then in that particular context, you were going to have to start in the small places. Closest to home, in places not seen on any maps of the world.
So the point I want to make is, that it’s remarkable in 1946, it was a very, very important woman who had ultimately pioneered the entire process of giving content to human rights. That was the mandate, giving content to human rights in the post second World War period. In a way if you wish, to vindicate the ideas both of and subsequent to Hannah Arendt whom I’ll come back to shortly, but who both argued that unless you are going to essentially emphasise the dignity and humanity of each person, you were never going to have to have peace and security in the world.
Let me just make one final point before handing over to David. '48 was the start, but as you can see, the United Nations Decoration of Human Rights was essentially the framework within which many national constitutions within this, including the South African, the Canadian, and many others. At the same time, it also inspired two further covenants, which were passed by the United Nations in 1966, the International Covenant of Civil and Political Rights, and the International Covenant of Economic, Social and Cultural Rights.
Both important parts of international laws, recognised today and binding on many states, including my own, South Africa. Which means that you can go to a South African court and insist that the Constitution be read to the prism of these particular rights in order to vindicate their promise. In short, when cows overemphasise the importance of this breakthrough, which came after the Second World War, recognising the centrality of humanity. Now where that takes us now is a particularly interesting question.
But I’m going to pass to David and I’ll come back, give you final five minutes on this, particularly in the light of the Brown Report to which I’ve made reference. So David, over to you.
- Thanks so much Dennis and thanks to Lauren and hi and welcome to the team Lauren. Good to meet you. And hi to everybody all over the world. So this has been a really interesting area for me to look at and I’m just going to pick up on what Dennis is saying with three main ideas. The first is the right to satire. I’m sure you know I love satire and comedy. And I’m going to show a short clip from “Yes Minister,” which is a satire…
The quick definition I guess, would be the right to ridicule power. The right to tease, to make fun of power, which originated with the ancient Greeks in the Festival of Dionysus with the comedies, when they had it for a month. And the writers and the actors could say anything they wanted about anybody in power in ancient Athens, and they would not be prosecuted or imprisoned or anything. So that’s where it began in terms of recorded theatre and literature that we have. And what’s interesting for me is that the satirists are usually the artists, writers and so on, who are targeted the first by non-democratic or societies which do not honour human rights. They’re the ones they go for the first, the cartoonists, we know about the attacks and others. All of those are part of the satirical artistic characteristic if you like.
Then the second, is I’m going to just look at a recent Ipsos Mori poll, which was done in 28 countries with many people around the world. And it was done in 2018 and some of the very interesting responses to this survey or questionnaire on thoughts about the UN Declaration of Human Rights today. And then lastly, just suggest a couple of ideas, questions, in terms of furthering the 2018 report and some interesting ideas that perhaps arise now. And then, as Dennis said, he’ll look at the Brown Report. So I’m going to start with this little clip. And this is in the context obviously of a very established democracy, Britain. And one must see the role of satire, but it’s so brilliantly written and acted, It’s a short five minute clip.
last night a confidential source disclosed to me that British arms are being sold to Italian red terrorist groups.
I see. May I ask who this confidential source was?
said it was confidential.
I’m sorry, I naturally assumed that meant you were going to tell me.
You seem to be very worried by this information.
[Humphrey] Well, these things happen all the time. It’s not our problem.
So does robbery with violence, doesn’t that worry you?
No Minister, home office problem.
Humphrey, we are letting terrorists get hold of murderous weapons.
We’re not.
[Minister] Well who is?
Who knows, Department of Trade, Ministry of Defence, Foreign Office.
We Humphrey the British government. Innocent lives are being set at risk by British arms in the hands of terrorists.
Only Italian lives, not British lives.
The British tourists abroad.
Tourists, foreign office problem.
Humphrey, we have to do something.
With respect, Minister, we have to do nothing.
What do you mean?
[Humphrey] The sale of arms abroad is one of those areas of government that we do not examine too closely.
Well I have to now that I know about it.
[Humphrey] But you can say you don’t know.
You’re suggesting I should lie?
[Humphrey] Oh, not you Minister, no.
[Minister] Well who should lie?
Sleeping dogs Minister.
I’m going to raise this.
No Minister, I beg you, a basic rule of government is never look into anything you don’t have to. And never set up an inquiry unless you know in advance what its findings will be.
I can’t believe this, we’re talking about good and evil.
Ah, Church of England problem.
No Humphrey, our problem. We are discussing right and wrong.
[Humphrey] You may be Minister, but I’m not. It would be a serious misuse of government time.
Selling arms to terrorists is wrong, can’t you see that Humphrey?
No Minister. Either you sell arms or you don’t. If you sell them, they will inevitably end up with people who have the cash to buy them.
But not terrorists.
Well I suppose we could put some sort of government health warning on the rifle racks. This gun can seriously damage your health.
All very well to take this lightly But we cannot tell lies to something that is as morally wrong as this.
Very well Minister, if you insist on making me discuss moral issues, may I point out to you that something is either morally wrong or it isn’t. It can’t be slightly morally wrong.
Don’t quibble Humphrey.
[Humphrey] Government isn’t about morality.
Really? What is it about then?
Stability, keeping things going, preventing anarchy, stopping society falling to bits, still being here tomorrow.
What for?
[Humphrey] I beg your pardon?
What is the ultimate purpose of government? If it isn’t for doing good?
Minister government isn’t about good and evil, it’s only about order or chaos.
And it’s in order for Italian terrorists to get British bombs? And you don’t care.
It’s not my job to care. That’s what politicians are for. My job is to carry out government policy.
[Minister] Even if you think it’s wrong?
Well, almost all government policy is wrong but… Frightfully, well carried out.
Humphrey, have you ever known a civil servant to resign on a matter of principle?
I should think not, what an appalling suggestion.
The first time I fully understand that you are purely committed to means and not to ends.
Well, as far as I’m concerned, Minister and all of my colleagues, there is no difference between means and ends.
If you believe that Humphrey, you will go to hell.
Minister, I had no idea you had a theological bent.
You are a moral vacuum Humphrey.
[Humphrey] If you say so minister.
It’s time for your lunch appointment, Minister.
You’re keeping very quiet, Bernard. What would you do about all this?
I would keep very quiet Minister.
[Humphrey] So Minister, maybe drop this matter of the arm sales.
No, we may not.
I’m going to tell the Prime Minister, personally. Make an appointment for me, would you Bernard. This is just the sort of thing that the Prime Minister wants to know about.
I assure you, Minister, this is just the sort of thing the Prime Minister desperately wants not to know about.
We shall see about that.
Indeed we will. What’s the matter Bernard?
Oh, nothing really, Sir Humphrey.
You look unhappy.
Well, I was just wondering if the Minister was right actually.
Very unlikely, what about?
About ends and means? I mean, will I end up as a moral vacuum too?
Oh, I hope so, Bernard. If you work hard enough.
It makes me feel rather downcast. If it’s our job to carry out government policies, shouldn’t we believe in them?
What an extraordinary idea.
Why?
Bernard, I have served 11 governments in the past 30 years. If I’ve believed in all their policies, I would’ve been passionately committed to keeping out of the common market and passionately committed to going into it. I would’ve been utterly convinced of the rightness of nationalising steel and of de-nationalizing it and re-nationalizing it and capital punishment. I’d have been a fervent retentionist, and an ardent abolitionist. I would’ve been a Keynesian and a Friedmanite a grammar school preserver and destroyer, A nationalisation freak, privatisation maniac. But above all, I would’ve been a stark staring, raving schizophrenic.
Okay, I wanted to just show that, because not only about satire, but also in a democracy even, the questions of is the government for good or bad to try and improve and implement policies that will help communities the majority. Is it more about order? Is it more about following certain group interests, et cetera. All the ideas which are provoked in this little short, brilliant, satirical piece, written a couple of decades ago, but I think still so incredibly astute for our times. Just as a way of lightning and also showing that one can always have an ironic perspective on almost anything.
Okay, then moving on, I want to look at the global Ipsos Poll, which was of 28 countries, as I said, in 2018 on the declaration. And these were the countries where they surveyed many thousands of people to come up with their final report. And very interestingly, because this is just a couple of years ago, so I want to just share a couple of facts which emerged.
The first is that four out of 10 people in all these countries, globally, from Malaysia, Mexico, Peru, the US, the UK, Canada, Australia, Germany, South Africa, South Korea, Sweden, Turkey, Saudi Arabia. 4 out of 10 say that they knew little or nothing about human rights, let alone the Universal Declaration. This is in 2018. Very interesting. Some other ideas that came out of the survey, 8 out of 10 in all these countries said that it was important to protect human rights. That’s 80% of the population of these huge countries, includes China.
The three rights that were regarded, a couple of years ago, as the most important freedoms. Freedom of speech, the right to life and the right to freedom. The groups that were regarded… That should have the most protection on human rights, the disabled, the elderly generation and children. The three organisations that had the most awareness globally of trying to nurture and develop the notion of human rights was the UN, the Red Cross and Amnesty International. They were seen very favourably.
Then the countries that agreed that in their country, everyone enjoyed pretty much the same human rights. The top Germany and interestingly China. They were at the top of the tree of countries where they said everyone in their country enjoys similar human rights. At the very bottom, interestingly, were South Africa and Italy enjoying the least human rights. This 2018. The countries which said that human rights is not really a problem in their home country. The top was Germany, Malaysia, and Saudi Arabia.
These are the top three countries that said human rights abuses were not really a problem at home, at the lowest end were Colombia and South Africa and Peru. The most citizens who agreed that it was important to have a law that protected human rights and their countries was nearly 80%. So globally, nearly 80%, said it’s vital to have a law which protects human rights in their countries. The ones that thought it was the most important to have a law, 86%, were Serbia, Hungary, Columbia, and South Africa.
To have a law which protects human rights in the home country. The countries where they knew the least about the UN Declaration in human rights, where Japan, Russia, and Hungary. The countries where they said they knew the most about human rights, not necessarily the law or anything else, but where they knew colloquially in the media or from friends, family elsewhere, they knew the most about human rights were Turkey, South Africa and Malaysia.
Two out of three citizens of this global survey, two out of three said that some people take unfair advantage of human rights in Columbia, South Africa and Peru. 4 out of 10 said that people who benefit from their human rights in their country but don’t deserve to, like terrorists. The least, very interestingly, the lowest number where they said that there were terrorists living in their country who benefited but they didn’t deserve to. The lowest numbers were Japan, the US and Canada.
So they regarded very few people would get rights in their country without deserving it. Interestingly, the right to free healthcare was higher than the right to vote. It was seen as more important couple of years ago, than the right to vote. This is of course is just a poll, but it was done of many thousands of people globally. Secondly, interestingly, that the right to own property was at the lowest of all the rights that Dennis mentioned earlier in the survey. The freedom of speech, the priority, the countries which gave the highest priority to freedom of speech were Germany, Sweden, Turkey, and Peru.
The countries where they’re asked the question, all these countries, they’re asked, should you have the right to bear arms? Is that a priority? Every citizen, the right to bear arms, 15% in the US said that is a human right. 3% was the global average in the other 27 countries of the right to bear arms is a human right priority. No other country was more than 5%. So I just give this as a little snapshot of a bit of a global perspective. And it’s just a poll, It’s not definitive, it may even be seen as partly anecdotal, but it is a well conducted global survey done by a very reputable company, Ipsos Mori, and putting these questions and coming up with all of this together.
I think some fascinating, very contemporary perceptions about the notion of human rights, this absolutely crucial and incredible notion of human rights. Okay, then some facts and questions for today, which I want to go on to. The Chinese interestingly argued about the right of development, which was regarded as a human right, the right to development. In other words, we could translate that quite clearly into political repression combined with economic liberalism. But a high number argue that the right to development was a human right.
Also, interestingly, that the notion, just the phrase human rights, which as Dennis mentioned of course, has come from the war and everything that developed from the ashes of the war afterwards. In English language books, it’s increased 200% since 1945. The use of that phrase human… Since 1948, the use of that phrase human rights is rocketed in terms of certainly books translated into English, or in English, that it has gone out into common cultural perception and discourse. And many people would argue that in international law, the incorporation of just the idea of human rights, 'cause everything starts as an idea, in international law is one of the greatest achievements in human history, which I would agree with.
So the question is, some argue what are the pros and cons of the perception of human rights today? Obviously it’s not legally binding. Which is a problem obviously. But nevertheless it has forced its way into the questions of integrity, ethics, or morality. And countries a lot, or most of them, have to deal with it in some way, even if in an Orwellian twist of language, they twist it to the opposite and I’ll give some examples. For example, Britain and France did not commit, to liberating their colonies. Which is embedded in the human rights, The UN Declaration. America did not commit to ending racial segregation.
Let’s be honest about it, we have to be fair. As you know as Dennis mentioned, the Soviet Union, Yugoslavia and Saudi Arabia were amongst eight who abstained from voting for the Human Rights Declaration. Does this capture the imagination of voters? It’s an interesting question, which has been looked at quite a lot in the survey and others. And how do you then work it in so that it’s part of capturing the imagination of potential voters in countries where you do have a reasonably fair vote.
Also, what has come up was the conflict early on was obviously the terrible repression in the Soviet Union and the liberal attitudes and the democracy and freedom of attitude… Freedom of rights in the West. And at the time what’s interesting is that the West argued that human rights were political rights. The right to vote, speak freely, religion, not be arbitrarily arrested and so on. The Soviet Union in an Orwellian twist, argued that human rights consisted of economic and social right, not the others.
But what is interesting as Dennis mentioned, that this then came in later, the right to work, to healthcare, to education, was included in the 1976 treaty, which was a combination of political and economic rights. So it was originally framed as a binary narrative. Either you supported political rights, which was liberal democracy, or you supported economic rights, socialism, Soviet Union, and it was a binary narrative set up. But after '76, these two came together, and from there on it was a much more nuanced and if you like, complex but vital set of human rights.
Later it came into including social groups such as immigrants, such as refugees, the disabled, et cetera. So one can see a very progressive and intelligent development of the very notion of human rights and groups. The EU, interestingly insisted that countries hoping to join the EU to get the economic benefits of the common market should also be required to respect human rights. And that’s the argument used with some countries to keep the door closed until they do. Then September the 11th, 2001 obviously changed a whole lot of things with the war on terror, terrorist, refugees and so on.
China and Russia have have been noted obviously many times for limiting the political rights. These rights that we talk about. Saudi Arabia is classically Orwellian. They ratified the treaty banning discrimination against women in 2007. But of course, as we know, we know what the law is about women in Saudi Arabia. So it’s an Orwellian twist which Putin and many others have used. So they’ve had to deal with human rights, but they were twisted in the Orwell manner with language and say the right.
For example, when Putin invades Crimea, well, it’s the rights of minorities to self-determination. So what has to be aware that he’s using it, it’s embedded in global discourse, but it’s twisted under Orwell. But the very notion that the the guys, Putin and the others have to at least think about it. That is a development. Remarkable, I think in human history, never before. The right not to torture. Well, it’s the UN and Amnesty International have estimated 150 countries out of 193 do keep torture. And they argue as in the “Yes Minister” satirical clip, that it’s about maintenance of order and security.
It’s not about good or bad, right or wrong, it’s order and security, we torture for human rights. So this common language gets that twist. China cites the right to development as a human right to explain why the Chinese government is so politically repressive. Putin, as I said, and I’ve given that example, the US, let’s be honest and fair, use the example of Saddam’s suppression of human rights as one of the motives for going into Iraq. So we have all this question of the East and the West, but the idea of human rights has been forced into the common cultural perception. So many people around the world have heard of that phrase, know of it, and it’s so crucial in terms of helping a society I think become part of the 21st century.
What is very interesting and nuanced, and a lot of people commented on this in the survey, was the difference between the phrasing. It’s again, slightly Orwellian between humanitarian crises and crises that are originally the result of a human rights abuse. And it’s argued that Rwanda can fit into that. It’s an argument, it’s not definitive. So, as with many other countries, I would just like to mention a couple of other main points, which is this idea of social exclusion. Interestingly, there was a case in 2012 in France where it was argued that…
And they won the case, that France’s failure, 2012, to adopt a coordinated approach to promote housing for the “Roma” in inverted commas, in common parlance, the gypsy, population in France had been violated. In other words, the French hadn’t put up enough houses for the Roma people. And it violated Article 30, the right to protection from social exclusion. Many other examples we can give. People with disabilities, with aids, et cetera, many other countries around the world. Gender, homosexual, et cetera, et cetera. That’s what has become known today as this social exclusion of certain human rights.
Can I leave you with a thought of what would… Can we imagine a world without a strong commitment to the idea of human rights? And I think post the Second World War and so much of what all of us have been looking at in these lectures over the last few months, can we imagine a world where the notion of human rights is not known, is not taught at school, not only in in specialised university courses, but at school. Perhaps it should be, together with basic notions of law, economics, health, and so on. And finally, if I may mention the old story from the ancient Greek theatre of Antigone, which is the ultimate classic play of human rights, which Antigone’s uncle is Creon, who’s the king of Athens. And her brother, nevermind the whole story, her brother does something against Creon.
So he has him executed and the body dumped outside the walls of the city. And in Greek religious culture of the time, it was vital that you buried your family or your relatives. You didn’t leave the body on top of the ground. That was sacrilege. But because her brother had violated Creon’s law, done something bad, his body was just left out to rot and the vultures. So Antigone sneaks out through the gates of the city at night and buries her brother. She’s caught by the guards, taken to Creon the king, her uncle, and he’s in a dilemma of freaks, et cetera, et cetera, what to do, she’s the niece. And what does he do?
He says, “I have to execute you.” And he goes ahead and he kills Antigone, his niece. For what, for burying her brother. But it was against one of the important religious rules of the time and Creon as a king says he has to uphold it. So we have the classic ancient Greek play of what is in the interest of the community and the individual interest. And Dennis is far better than me at knowing this. But this ancient tension between the individual, right and the community’s right and how to balance the two.
And I think that play for me has echoes all the way through that millennia of centuries. And we are at the time now where we are looking at this very important vital notion of human rights, all the Creons of the world who will kill their nieces, because of some ridiculous rule, but they feel they have to uphold for the community. There’s no sense of anything else. Or the individuals who want the rights for freedom, speech, other things.
So I’ll leave you with that. And back to Dennis with Gordon Brown.
- Before I get to Gordon Brown, I just want to pick up a point that you just made, David, which is absolutely essential to any evaluation of human rights in the 21st century. Shortly after the United Nation Declaration of Human Rights was promulgated, accepted by the countries to which I’ve made reference. Hannah Arendt of course published her origins of totalitarians. And if you look at that, she actually deals with this particular question of the United Nations Declaration and indeed the limitations of human rights.
And she makes a very fundamental point, which I want to share with you. She says, “The inalienable notion of human rights can only find their guarantee in the collective right of self-governance.” Goes back to David’s point of community. And she basically said that has to be possessed in a particular territory. In other words, what Arendt was on about, which is a very important point about a cosmopolitan vision of the world, is that it’s all very well. Suggesting that you should have inalienable human rights.
But if you don’t locate it within a territory, then in fact the question is what rights do you really have? And the reason that she mentioned this, was because of course of the experience of the war, which had powered this entire reevaluation of human rights and in which all sorts of people had been stripped of their nationality. Of course Jews in particular, but not only in relation to being stripped by the Nazis of any idea of citizenry. And once that happened, you had no rights left.
And I leave with you a particular question about this extraordinary tension within the United Nations Declaration and the enterprise itself. Namely of the idea, and I’ll come back to this by looking at the Gordon Brown Committee in a moment, of can we establish an international governance, which essentially can vindicate, can implement human rights on the one hand, and on the other hand, absent rights with international territory, can individuals actually ever have and enjoy human rights? And it’s a terribly important point, I think an insight that Arendt developed in her book, and which I think we need to think about in relation to how you ensure a great expansion of human rights.
There’s clearly a tension, which ultimately was contained within the committee, which drafted it. Of course, I measured to suggest that there were two principle drafters, Rene Cassin the French theorist, who eventually won the Nobel Prize and whom I’ve already mentioned was somebody who had been so horrified by the Zionism and the racism resolutions, which came sometime thereafter. And of course the Canadian, John Humphreys. They were the absolute critical drafters of this. But the question which I suppose both of them had to contemplate, which was this tension that I’ve mentioned.
Now let me come then just finally to the question of the Gordon Brown, it’s 2016, not 2018, my typing is shocking. And I clean forgot, it’s 2016. Gordon Brown chaired this committee, had unbelievably distinguished people on that committee, which evaluated the United Nations Declaration 70 years later. As I say, it’s a free book that you can get on Google by just simply downloading it. It’s well worth reading. It has a really interesting panel. Gordon Brown created it, but it had Kenneth it had Jeremy Walden, one of my favourite legal philosophers.
It had ElBaradei, who of course became very famous, because of the arms questions, the whole question of weapons in Iraq, it had Rabbi Jonathan Sacks, and it had my old student who reveals the illustration that students are so much more smart than their teachers and go so far further ex-constitutional court Judge Kate O'Regan. They were all on that committee and they said a whole range of things. But let me just give you two aspects of what they’ve said, which is on the board, and I’ll read them out by way of conclusion.
“Everywhere we look, we’re reminded that the Declaration has stirred civil rights movements and hastened the march of progress. The words of protestors speaking out against colonialism and apartheid have been laced with the spirit and times the letter of the Declaration. Those seeking to discriminate on the base of ethnicity, religion, gender, and sexual orientation have confronted a wall and a tall one at that in the Declaration. Conditions of poverty, illiteracy and squalor have all been challenged under the banner of the declaration. And for those like Nelson Mandela, inspired by the sentiments of the Declaration, no intimidation, no show trial, no prison cell, not even the threat of execution, could ever extinguish their desire to stand for freedom.” That’s what the Brown Committee said.
But it went on to say something equally important. It said, “It is essential to recognise the number of rights that we think have come into clearer focus after 70 years and need more emphasis than they received in the Declaration.” That is in '48. “They fall into three broad categories. The rights of members of specific groups comprising the rights of women, the rights of children, the rights of the disabled, including the profoundly disabled, the rights relating to sexual orientation and the rights of prisoners.”
The second category, “The rights of groups such as comprising the right to national self-determination, including regional autonomy and subsidiary, the rights of indigenous people. So prohibition against ethnic cleansing and the rights of people prejudiced at the national or communal level by climate change.”
Thirdly, “Rights related to other issues affecting vital interests in comprising migration, statelessness, administrative justice, corruption, privacy from state or corporate electronic surveillance, access to the internet and electronic communication on a global scale, et cetera.” And then of course a sustainable environment. These are all issues which challenge us today, but I come back to my central point, what is the mechanism by which these should be enforced?
It is manifestly clear that even then there was the idea that the major vehicle would be the national state, that national states would be the primary responsible for ensuring the human rights of its citizens. But as the Brown Committee said, by way of conclusion, “What must be needed in addition on multiple overlapping coordinated mechanisms operating at national and international level.” We still don’t have that.
And as a result thereof, the vision of 1948 has not been vindicated for the vast majority of the populations of the world. As a constitutional lawyer, I take comfort in the fact that many countries, including my own, have now effectively incorporated a constitution of a kind, which basically is shaped by that document of 1948. Had anybody asked me in the late 1980s, would I ever live in a society who’ve had a constitution of this kind, I would’ve thought they were mad.
So I live in hope, but that hope is perhaps the best that the United Nations Declaration offered. And there is so much more to do to actually ensure that that golfing between the promises of that declaration and the grading realities, which the vast majority of the world’s population still live, that still has to be filled. And I’ll leave it at that.
And let’s go to questions.
Q&A and Comments
All right. David, I’ll just start reading if I don’t mind.
- [David] Sure.
Q: Which countries have not signed the declaration? Well that’s–
That’s my cousin Izzy. Hi Izzy, how are you?
If you’d like to have a
Israel, great. Izzy, I’ll tell you this,
No, go for it.
A: I dunno all the countries, but I can tell you the following, Algeria, Bahrain, the Comoros, Egypt, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Pakistan, Somalia, Sudan, Syria, Tunisia, Turkey, and Yemen are amongst them. That gives you some flavour, right?
Then the second question by Judith, question on Judith,
Q: “What about China and Burma? What does United Nationals do about the human rights crimes? Is there a comparison between the Chinese treatment, the Nazis war camps, they’re not murdering people, but are torturing people and denying their religion and reproduction?” A: You are totally right Judith, but that really hangs on precisely the point I’m making. Is that there is this gulf between the vision and the implementation. And let’s be frank about it, the United Nations has not done sufficiently well in this particular regard. Interesting enough, the Brown Committee recommended that when it came to human rights abuses, the countries who have a veto on the security council should not have that veto. And that might help to some extent. But I can’t say more other than I agree with you entirely, and it’s a massive problem.
Christopher, you mentioned the right to practise one’s culture. Genital mutilation does not in fact get justified on the rights to culture. Because remember, you have to read these rights in order as a whole. You have to read them in order to promote the broader spirit of them all. And clearly that is not so.
Again Susan, the mechanisms that weren’t put in place, that’s the point, that’s the difficulty.
Yes, Linda, John Humphrey was one of the people together with Rene Cassin as I said, who drafted it and a great credit to them.
Myra, “The effort in the US and the Republican party intending to making voting impossible people of colour.” Absolutely, absolutely. It is a shocker to me that in fact in the year 2021, a country which acclaims to be a democracy is deliberately subverting the right of people to vote. And I can only recommend to you, Elena Kagan, Judge Justice Elena Kagan’s minority opinion in the latest judgement of the Supreme Court in which he articulates far more eloquently than I could possibly do. Precisely that particular issue that you’ve made.
You’re quite right Denise, Mrs. Roosevelt did not go to university and neither did Churchill, but she had a great deal of wisdom. And there’s no question she was one of… As Romaine says, “I agree, she certainly understood the notion of human rights.” She was an utterly remarkable woman. In fact, one of the things that gave me a real tickle was that when… And the various times that I’ve taught at NYU Law School, in one of their buildings where a couple of my friends lived, she had an apartment there. I mean, she really was an extraordinary person. And her role in the United Nations Declaration cannot be estimated.
David, I think the name of the YouTube satire that’s a “Yes Minister.”
Yeah, “Yes Minister,” and then later it was “Yes, Prime Minister.” But there are lots of clips of the full 26 minute episodes as well as brief four, five minute clips with the essence of them on YouTube you can find called, “Yes Minister.”
I cannot recommend them more highly.
Q: Martin, “The United Nations Declaration Convention on the rights of the was agreed to in '89. Why did it take 40 years?” A: I’ll tell you why. There were only three countries, Martin, that have not signed onto it. It’s actually the most widely signed on declaration of any international treaty. And you know who the three countries are? Somalia, South Sudan, and who is in the company of Somalia and South Sudan. Yes, the United States of America. United States of America has not signed on to that convention.
It’s an utter disgrace, and it’s blocked, 'cause in order to sign onto conventions, it has to go through, of course, Congress and Republican senators, for some bizarre reason have objected to this on the basis that it erodes American sovereignty. Why on Earth that should be, unless they think that in fact the abuse of children should be essentially a concomitant of American sovereignty after the slightest idea. But the fact is, thanks to that, it’s taken a hell of lot longer than ever. It’s a disgrace.
Thank you very much, Linda.
Linda, thank you. And just to mention that I’ll be doing a short series on satire and comedy in August. Anyway, with some more of this, “Yes Minister” and Monty Python and some others.
Edward, I’m not sure of the definition of the right of development as per China. Yes, but that’s not the really… Point about the right development. The right to development, Edward, is supposed to be integrated into a broader democratic enterprise. So you can’t… The idea that you’d have the right of development of levels of oppression that in China was never envisaged nor as part of human rights law. I didn’t…
It’s an Orwellian twist of language there, Edward. Just to–
Sorry, yeah, yeah, yeah, yeah. Sorry David, carry on.
No, no, sorry, sorry.
Cheryl, what do you mean by being a human rights… Why are human rights a disaster, Cheryl? I mean, is that–
If I may, Dennis, some people would argue Cheryl… That the framing, it’s an interesting choice of words, because framing it as humanitarian has a whole lot of connotations. Whereas framing it as human right, I think has a much more positive dynamic and perhaps a stronger connotation that it’s an abuse of human right which may result in a humanitarian disaster. But the framing as a humanitarian disaster is sort of, clean the conscience, send the money after the event. But if it’s framed up front, I think this is the argument made by these people, sorry. This is one of the debates rather, Cheryl. If it’s framed up front as human rights abuse, that’s a whole different story in contemporary consciousness. Given the importance of the notion of human rights, which is more agency than humanitarian disaster, which is more the result. Sorry, Dennis, over to you.
Yeah, sure.
Q: “What would the speakers identify in the view as the most important declaration?” A: Yes, you are right, Ralph. Natural rights embodied have been debate by very countries that should benefited. I agree. But I do think the point that David has made, which was fairly important, is that it’s come into the discourse. And as the Brown Committee suggested, if people all over the world now couch their demands in rights talk and in human rights talk, can’t possibly be underestimated that it is now part of the agenda and you can evaluate in a manner prior to that United Nations Declaration just never existed.
Q: Christopher, “Could you say about rights trumping other rights?” A: Well, I can give you a whole course on that, Christopher, because it’s quite a complicated topic. But the idea… When you say an example from the Netherlands, when I lived there, the right of free speech to say things that are abhorrent, such as advocating killing Jews as opposed to the rights of youths to live in safety. We in South Africa would not agree to that, because the right of free speech does not include hate speech. And in effect, what you’ve got to do, is you ask yourself which rights are primary. So if you take for example, the fact that United Nations Declaration of Human Rights emphasises as a centrality, the notion of dignity, the idea would be that you’d work from that backwards and say, well, in which rights essentially are eroding dignity. And those… Certain of those rights would take precedence over others.
There’s a more complicated explanation about what’s called the limitation of rights in law, which is that legal legislation, which can limit rights. But even then you would centrally… The trumping would come by, which is where I can’t stand any longer. But the overriding of rights, to put it differently, would be effectively where you’d ask yourself, what is more important in circumstances. Stanley, yes, you’re right. The South African constitution does confer rights on all persons. Obviously doesn’t have the right to vote for everybody because of that.
There you are David, how did John Paul start
Nice. John, it’s similar to the Sophocles, the original… I mean, many other writers are… And many others have taken up the classic, 'cause it’s the essence of so much drama. The interest of the collective versus the interest of the individual. And it’s an eternal conflict in human nature. I think in once one has society’s communities. And tried to make it a bit more modern, obviously given the post-war context, but the essence is the same.
There are a lot of people, thank you very much for all your kind comments.
Howard, my cousin.
Well, good luck to your cousin.
In Washington.
Very nice, very nice. Hi Howard, hope you’re well, hope you’re great. Lovely to see you. Okay, hope you– Hugh, you’re right, Smuts was defeated in May '48 and so probably it was probably Milan, you’re right on that. But there’s no question about it that Smuts himself was totally and utterly eviscerate the fact that he’d committed himself to drafting in part the charter of human… the UN Charter. And then of course completely advocated policies in South Africa, which were totally contradictory there too.
Thank you again for various compliments.
Thanks Marcia. Theatre and Law, it’s incredible, because they deal with conflict and human nature. So the one resolves it in one way and the other, looks at it in another way. Great, Marsha thank you. Lovely to see–
Denise, I don’t what’s wrong with the United States. I’ve got enough problems sorting South Africa out. And anyway, then I think–
[David] I’m trying to sort out the Liverpool Football team. Anyway, yeah.
Yes, that’s another matter, David. David, thank you very much.
Okay, thank you.
It’s always with you, and thank you to everybody, please stay safe. And remember I think the real take home point is as long as we… To go back to Eleanor Roosevelt, if we respect our neighbor’s rights and the stranger’s rights with whom we come into contact, we start actually expanding that culture in the manner in which the drafters of 1948 thought. David, thank you very much and–
Dennis, thank you so much. Always love sharing with you. And thanks to everybody and to Lauren.
Take care.
Take care.
Good night.