| by Laksiri Fernando
(
December 10, 2012, Sydney, Sri Lanka Guardian) The adoption of the Universal
Declaration of Human Rights (UDHR) on 10 December 1948 by the United Nations, 48
countries voting in favour, 8 abstaining and none against, has marked a new era
in human history creating the possibility of modern societies moving towards
achieving a wide range of important human rights through legal enactments
supported by institutional and policy changes not only in the sphere of civil
and political rights but also in the realms of economic, social and cultural
rights. What we celebrate this year is the 64th anniversary of the
UDHR.
The
importance of the UDHR, succinctly
written in 30 articles with an equally lucid preamble,
as a social manifesto is perhaps higher than the
importance of the Communist Manifesto proclaimed
a century ago in 1848 by Karl Marx and Frederick Engels. If the Communist
Manifesto attempted to achieve the objectives of socialism, the UDHR combines
both liberal and socialist aspirations and sets forth some primary conditions
or minimum “common standards of achievement for all peoples and all nations.” The
UDHR in this sense is the culmination of two movements in human history:
liberalism and socialism.
Preface
If
John Locke was the philosopher who first emphasised the ‘right to individual
freedom’ in modern times in his two Treatises
of Government (somewhere after 1681),[1]
who even referred to Ceylon, Thomas More was the thinker who emphasised the ‘right
to social equality’ as a modern social aspiration in his Utopia (1516). He also referred to Ceylon. In terms of democratic
transformation, one may say that the UDHR in its formulations took more
inspiration from the American Revolution (1777) and the French Revolution
(1798); but inspiration from the Russian Revolution (1917) is also evident in
the text. More clearly, the work of the International Labour Organization (ILO)
since 1919 on labour and economic rights was a decisive influence. That is his
how a combination of both ‘political rights’ and ‘economic rights’ are present
in the UDHR, although one may say in an unbalanced fashion.
Mahatma
Gandhi writing on an initial draft of the UDHR in 1947 briefly emphasised the
importance of human duties; an Asian concern so to say. I asked one of the drafters
of the UDHR, John Humphrey, in 1987 in Malta when I met him there, whether they
could consider Gandhi’s views in finalising the UDHR and he pointed out Article
29 (1) which says: “Everyone has duties to the community in which alone the free and full
development of his personality is possible.” This is something that the UN
should elaborate and develop. However, the rights in the UDHR are not
conditioned on duties of any sort; conditioning is the modus operandi of many
authoritarian regimes throughout the world.
There
was a particular context within which a declaration of human rights was
necessary with a future and a universal vision. That was the advent of several
forms of fascism (Germany, Italy and Japan) and the horrendous human rights
violations perpetrated during the Second World War. While around 20 million
died in direct military confrontations, civilian casualties were double of that
amount including those died of war related diseases and famine. The Holocaust claimed 11 million lives; and Japanese
invasions at least around 6 million in Asia. As the Preamble of the UDHR noted
“disregard and
contempt for human rights have resulted in barbarous acts which have outraged
the conscience of mankind.”
With the above brief preface, this article attempts to critically
assess the contents of the UDHR for mainly educational purposes, keeping the
human rights issues in Sri Lanka constantly in mind.
Preamble
There
are eight paragraphs in the Preamble. First it says that ‘inherent dignity’ and
‘equal and inalienable rights’ of ‘all members of the human family’ are the
foundation of ‘freedom, justice and peace in the world.’ Different members but
one human family or ‘common humanity’ is the concept. SWRD Bandaranaike was one
who referred to the concept of ‘common humanity’ in his early writings in
1920s. Then ‘freedom, justice and peace’ are enunciated in the UDHR as higher
values or objectives of the human family and ‘dignity and rights’ are
considered the means or foundations of those objectives. The rights are
characterized in two adjectives: ‘equal and inalienable.’
The
second paragraph justifies the need for human rights protection. It indirectly
refers to the background to the Declaration ‘which outraged the conscience of
mankind’ and rightly claims that ‘disregard and contempt for human rights have
resulted in barbarous acts.’ It refers to four freedoms; ‘of speech and belief’
on the one hand, and freedom ‘from fear and want’ on the other hand, as the
‘highest aspirations of the common people.’ The full text of the third paragraph
reads as follows.
“Whereas it is
essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected
by the rule of law.”
Although
qualified as ‘a last resort’ and ‘against tyranny and oppression,’ this
paragraph obviously endorses a sort of ‘right to rebellion.’ This is something
taken directly from the 18th century French Declaration on the
Rights of Man. The fourth, fifth, sixth and the seventh paragraphs highlight
various reasons why the United Nations in particular needs to proclaim this
Declaration. (1) ‘To promote the development of friendly relations between
nations’ (2) ‘To further the affirmation in the Charter the faith in
fundamental human rights,’ (3) ‘To fulfil the pledge the member states have
given to respect and observe human rights and fundamental freedoms in
cooperation with the United Nations’ and (4) As ‘a common understanding of
these rights and freedoms is of the greatest importance.’
In the
final paragraph it declares that “Now, Therefore THE GENERAL ASSEMBLY proclaims
THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement
for all peoples and all nations.”
It should
be kept in mind that by this time in 1948 there were only 56 members in the
United Nations and many of the Asian and particularly African countries were
still colonies or dependent territories. However, it is not on the basis of the
number of countries or the nature of countries that the Declaration’s validity
or universality should be assessed but mainly by the contents and the relevance
of the contents. Moreover in 1993, at the World Conference on Human Rights in
Vienna, 171 countries affirmed the ‘universal nature of human rights’ without
any dissent.
It is
important to highlight what the Declaration said about the promotion and
protection of human rights in the Preamble. In effect, two recommendations were
made. It said that ‘all peoples and all nations, keeping this Declaration
constantly in mind, shall strive (1) by teaching and education to promote
respect for these rights and freedoms and (2) by progressive measures, national
and international, to secure their universal and effective recognition and
observance.’
Foundation Principles
Articles
1 and 2 can be considered the foundation principles of the Declaration and
perhaps of all human rights with some qualification. Article 1 says that “all
human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.” One may argue that the formulation is too abstract and a better
purpose would have served if it was formulated to say ‘all human beings should
be free and equal in dignity and rights.’ The unfortunate fact is that many of
us are not free or equal by birth or thereafter. Equally questionable is
whether the humans are always ‘endowed with reason’ while it is correct to say
that they “should act towards one another in a spirit of brotherhood.” But for
a ‘spirit of brotherhood,’ not only rights but duties are also of paramount
importance.
From a
conceptual point of view, Article 2 is more acceptable than Article 1. It is pronounced
against the abhorrent discrimination in society. It says “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.” All human rights here mean not only the civil and political rights but
also the economic, social and cultural rights. This is something often
forgotten. Equally forgotten is the inequality or discrimination based on
national boundaries or backgrounds. Since the foundation of the Universal
Declaration, very little effort has been paid to eliminate the vast disparities
and discrimination that exists within and between nations based on ethnicity,
nationality or what might be construed as ‘race.’ Vast disparities exist
between nations and countries in terms of international trade, economic
relations and in monetary regimes such as the World Trade Organization, the World
Bank and the IMF.
The main
objective of human rights philosophy is epitomised in Article 2 and it is a
meeting point of both liberal and socialist values perhaps with different
emphases. In this sense, it is closer in essence to the latter – socialism -
than to the former. It is primarily the philosophy of socialism that strives
for equality and detests discrimination. If each country and the world
community under the UN had endeavoured to achieve human rights (also duties)
based on this article during the last six decades, the situation in the world
today would have been different.
Civil and Political Rights
There is
no question that civil and political rights took a predominant place in the
Declaration. This is something which is criticised as the Western influence,
nevertheless important. This is clear from Articles from 3 to 21. Article 3
pronounces “the right to life, liberty and security of person” as the main
fundamentals of all civil rights. Freedom from slavery or servitude is also
highlighted as a right in Article 4 also with the objective of ‘prohibiting slave
trade in all their forms.’
The
primary aim of Article 5 is to prohibit not only ‘torture’ but also ‘cruel,
inhuman or degrading treatment or punishment.’ The importance of this right is
self-evident as torture could be considered the most inhuman and physically
intolerable form of treatment to a person and his/her dignity. For proper civil
rights there should be a firm legal foundation. As Article 6 proclaims,
“Recognition of everyone as a person before the law” is fundamental. Equally
important is the ‘equality before the law and the equal protection of the law
without any discrimination’ as Article 7 pronounces.
Article 8
not only prescribes that ‘everyone has the right to an effective remedy by a
competent national tribunal’ but also promotes that ‘fundamental rights should
be granted to everyone by the constitution or by law.’ This is one article that
has generated some progress throughout the world, different countries
incorporating fundamental rights in their constitutions or in separate bills of
rights. The subsequent three Articles of 9, 10, and 11 are also in respect of
civil rights of a person in the legal sphere proclaiming that “no one shall be
subjected to arbitrary arrest, detention or exile,” “everyone is entitled to full equality to a
fair and public hearing by an independent and impartial tribunal,” and the age
old liberal legal dictum that “everyone charged with a penal offence has the
right to be presumed innocent until proved guilty” and so on.
There is
no question that all these rights are important for a democratic system with
rule of law, independence of the judiciary and a system of fair trial with
legal equality. Without these rights a society will function ‘oppressively’ and
‘tyrannically.’ It is important to note that Articles 12 and 13 respectively
proclaim the ‘right to privacy’ and the ‘freedom of movement’ also
incorporating other necessary conditions for the proper exercise of these
rights and freedoms. For example, the freedom of movement includes “the right
to leave any country, including his (sic) own, and to return to his (sic)
country.” It is also in this context that Article 14 pronounces the “right to
seek and to enjoy in other countries asylum from persecution.” It should be
noted at this stage that the language of the Declaration is ironically ‘discriminatory’
using a male terminology instead of gender free language, as previously highlighted
with (sic).
The
‘right to have a nationality’ and the ‘right to found a family’ respectively
proclaimed in Articles 15 and 16 are important both as a civil right and a
social right. Men and women “are entitled to equal rights as to marriage,
during marriage and at its dissolution.” Most importantly, it declares quite
akin to the treasured ‘Asian value’ that “the Family is the natural and
fundamental group and unit of society and is entitled to protection by society
and the State.”
Property
is also declared as a civil as well as a social right and Article 17 declares
“everyone has the right to own property alone as well as in association with
others” and “no one shall be arbitrarily deprived of his (sic) property.”
During the cold war period, based on the ‘communist’ theory, it was argued that
private property should not be a human right and in fact it was left out from
the International Covenant on Economic, Social and Cultural Rights (ICESCR) in
1967. However, from the subsequent experience, particularly in the ‘communist’
countries, it is abundantly clear that some form of private property is
necessary including the freedom for business and industry to safeguard other
rights and also for the proper functioning of an economy. The State possibly
cannot perform all economic functions. The application of human rights in
business therefore is a major international concern today. A premier
organization dealing with the subject is the Institute for Human Rights and
Business based in London. The purpose of ISO 26000 is also to deal with the
subject.
Articles
18 and 19 perhaps can be considered the pinnacle of human rights in the Declaration.
The first intends to ensure “the right to freedom of thought, conscience and
religion.” “This right includes freedom to change his (sic) religion or belief,
and freedom, either alone or in community with others and in public or private,
to manifest his (sic) religion or belief in teaching, practice, worship and
observance.” The above are self-evident formulations on freedom of thought and
conscience without much need for interpretation. They are necessary conditions
for ensuring human dignity; in some cases in the form of ‘freedom of religion’
and in others in the form of ‘freedom of thought’ or both. It is in connection
with the freedom of conscience that the “right to freedom of opinion and
expression” are articulated in Article 19. Emerging as a civil right of
conscience in the previous article, this right also takes the form of a
political right that “includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and
regardless of frontiers.” The application of Article 19 is undoubtedly a
controversial one because of its political sensitivity and hostility from many
authoritarian regimes including Sri Lanka today.
The
political rights proper in the Declaration begin with Article 20 but strangely
limited to only two articles. Article 20 is about “the right to freedom of
peaceful assembly and association” and this obviously means the association of
political parties and other political organizations although not spelled out.
At least this article unlike Article 19 gives some moral indication for the
‘assembly and association’ by qualifying them as ‘peaceful.’ It is in a way
unfortunate that the most important ‘democratic rights of the people’ and the
‘importance of democracy for the society’ were limited to one single article
and that is Article 21. All aspects of this article are important for human
rights, but the question is not about what is included but what is excluded or
not spelled out.
It says
“everyone has the right to take part in the government of his (sic) country,
directly or through freely chosen representatives” but at what levels or in
what forms are not spelled out. It further says “everyone has the right of
equal access to public service in his (sic) country” but does not spell out the
feasible benchmarks. Most important undoubtedly is the following. “The will of
the people shall be the basis of the authority of government; this will shall
be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.” Perhaps no further comment is necessary on this formulation.
Economic, Social and Cultural Rights
From
Articles 22 to 27 some fundamental economic, social and cultural rights are
spelled out. However, what is apparent is a sort of carelessness in writing
these rights in the Declaration juxtaposing several rights together sometimes
undermining their significance. For example, Article 22 declares “everyone, as
a member of society, has the right to social security.” This is important and
it should have been highlighted separately as a single article like many
articles on civil and political rights i.e. Articles 3 and 6. But in the same
sentence the general principle that everyone “is entitled to realization,
through national effort and international co-operation and in accordance with
the organization and resources of each State, of the economic, social and
cultural rights indispensable for his (sic) dignity and the free development of
his (sic) personality” is declared by deflating both principles.
Likewise
it is in Article 23 that the ‘right to work’ with ‘free choice of employment’
and ‘just and favourable conditions of work and to protection against
unemployment’ all are spelled out in the same Section (1). Then there are four
sections for the same article. Section (2) is about “the right to equal pay for
equal work” “without any discrimination.” Section (3) is about the “favourable
remuneration ensuring for himself (sic) and his (sic) family an existence
worthy of human dignity, and supplemented, if necessary, by other means of
social protection.” Here also women are forgotten at least in the nomenclature.
It is unfortunately in the same Article in Section (4) that the “right to form
and to join trade unions for the protection of his (sic) interests” spelled
out.
It is
obvious that the drafters did not pay adequate attention on economic, social or
cultural rights. Nevertheless, Article 24 declares quite satisfactorily that
“everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.” Article 25 is about ‘social
security’ and related ‘social services’ that declares “everyone has the right
to a standard of living adequate for the health and well-being of himself (sic)
and of his (sic) family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowed, old age or other lack of
livelihood in circumstances beyond his control.” This Article is also important
in respect of the rights of the child which declares “motherhood and childhood
are entitled to special care and assistance” and “all children, whether born in
or out of wedlock, shall enjoy the same social protection.”
Article
26 is about the ‘right to education’ which covers several important principles
for ‘free and compulsory elementary education,’ ‘the generally available
technical and professional education’ and ‘higher education which should be
equally accessible to all on the basis of merit.’ While ‘parents have a prior
right to choose the kind of education that shall be given to their children,’
the article also elaborates on some principles on which education should be
based and directed. It is important to quote the relevant section in full as
follows.
“Education shall be directed to the full
development of the human personality and to the strengthening of respect for
human rights and fundamental freedoms. It shall promote understanding,
tolerance and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for the maintenance of peace.”
Although
the Declaration is supposed to cover ‘cultural rights of the people,’
apparently it is the most inadequate. Article 27 declares “everyone has the
right freely to participate in the cultural life of the community, to enjoy the
arts and to share in scientific advancements and its benefits.” Here the
cultural rights are reduced to individual rights in participating in the
community. Although that is important, the most pressing human rights issue has
always been the cultural rights of different ethnic and religious communities to protect and promote their language,
culture and customs without inhibition and discrimination. This aspect has
completely skipped the purview of the Universal Declaration giving rise to many
controversies and ambiguity. The most important language rights are not
included in the Declaration.
Final Articles
The final
three Articles 28, 29 and 30 are crucially important in understanding the
significance as well as the philosophy of the Universal Declaration further.
Article 28 also invokes an overarching international right “to a social and
international order in which the rights and freedoms set forth in this
Declaration can be fully realized.”
It is
unfortunate that very little attention has so far been paid to this
‘international right’ which undoubtedly requires a complete overhauling of the
present international economic and political order, but in the right and
progressive direction, within which the rights and aspirations of the majority
of the world population are neglected and undermined. But this is an objective
which should be achieved through international cooperation and not
confrontation. Many of the root causes of human rights violations are directly
and indirectly located in the present international economic and political
order. While the violations within individual countries should be eliminated,
equally important is to address some of the root causes that are in the
international sphere.
As it has
already been mentioned in the early part of this article, the full meaning of
Article 29 in respect of human duties and responsibilities should be brought to
the focus of human rights efforts in both protection and promotion. Article 29
further says “in the exercise of his (sic) rights and freedoms, everyone shall
be subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.”
Article
30 of course is a protection clause. It prevents abuse or misuse of human
rights in the name of human rights and says “nothing in this Declaration may be
interpreted as implying for any State, group or person any right to engage in
any activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein.”
Conclusion
There is
only one single conclusion that I would like to emphasise on this Human Rights
Day. All others might emerge out of that conclusion. That is the crucial
importance of ‘education as a human right’ and ‘education for human rights’
also as a human right. This is something terribly neglected or absent in the
so-called “National Action Plan for the Protection and Promotion of Human
Rights, 2011-2016.” Only FUTA has taken some concrete action to arrest the
deterioration of education in Sri Lanka demanding for the allocation of 6% of
the GDP for education which is so far adamantly denied by the government on
various excuses. As Article 26 of the UDHR says “education shall be directed to
the full development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms.” Full development of the
human personality includes the development of both the social and technical
skills of a personality and her/his employability and professional development.
In terms
of the protection and promotion of human rights, the Article also says, education
“shall promote understanding, tolerance and friendship among all nations,
racial or religious groups, and shall further the activities of the United Nations
for the maintenance of peace.” This should be a benchmark for all schools and
universities in their educational programmes. It is also the Preamble of the
UDHR that asked all the member states “keeping this Declaration constantly in
mind” to ‘strive by teaching and education to promote respect for these rights
and freedoms.”
The UDHR
is an inspirational document written in a language that could be understood by
anyone with a basic education or literacy. The distribution of this Declaration
in Sinhala, Tamil and English in schools and workplaces as appropriate and the
organization of mass discussions on the subject of human rights can make a considerable
headway in facing the increasing challenges of human rights issues in the
country.
[1] The year of publication of Two
Treatises is of dispute. However, the reference to Robert Knox’s Ceylon published by Chiswell in 1681
indicates a subsequent date for John Locke’s work.
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