Posted May 02, 2009 12:20 am CDT
Both sides of the story were explored in depth at a recent ABA program commemorating the U.N. General Assembly’s vote on Dec. 10, 1948, to adopt the declaration. None of the U.N.’s 58 members then dissented, but there were two absences and eight abstentions: Saudi Arabia, South Africa and the members of the Soviet bloc.
While the declaration has no binding legal effect, it became a pillar of customary law in the postwar world and gave birth to the modern human rights movement. The declaration served as the basis for two binding U.N. human rights agreements: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. Several human rights institutions, including the European Court of Human Rights, the International Criminal Court and the U.N. Human Rights Council, created by the General Assembly in 2006, can trace their roots to the declaration.
The principle of universality was a key achievement of the declaration, said Michael Posner, president of Human Rights First, an advocacy group based in New York City. “It said that, by virtue of our humanity, every person on this Earth is entitled to certain core protections,” Posner said during a panel discussion. “It doesn’t matter what your citizenship is. It doesn’t matter if you have a green card. It doesn’t even matter if your government doesn’t believe it. You have those rights.”
The declaration also transformed human rights from a domestic matter for each nation to address as it saw fit into an issue of international concern, Posner told the multinational gathering at the Manhattan headquarters of the Association of the Bar of the City of New York.
But despite these achievements, Posner and other speakers voiced concern that the human rights movement has stalled in recent years.
Some said it is particularly troubling that some of the worst violations of human rights law in recent years have been attributed to permanent members of the U.N. Security Council—including China, Russia and the United States—in pursuit of policies to fight terrorism.
“If permanent members of the Security Council flagrantly violate international law and the rules of human rights, they send a terrible message to the world,” said Hans Corell, a Swedish lawyer and former U.N. legal counsel and undersecretary-general for legal affairs.
U.S. government policies during the Bush administration came in for widespread criticism at the same time that speakers expressed strong hopes that the Obama administration will make human rights a policy priority.
Posner said U.S. policy traditionally has been based on the idea of exceptionalism—“that sense that we are so good at this that we don’t need to be bound by international standards.” But in recent years it also turned sharply away from human rights principles expressed in the universal declaration. “It’s the notion that these core values underlying all of what the human rights regime is about have been trumped by a new theory of national security,” he said. “It’s the notion that war trumps law.”
Soon after taking office in January, President Barack Obama announced that the Guantanamo detention facility would be closed and that policies for interrogating detainees would be changed, but there is pressure on the new administration to do more.
On March 31, Obama announced that the United States would run for a seat on the U.N. Human Rights Council—a body the U.S. refused to join under the Bush administration—when elections are held this month.
The conference also featured intense debate on just how universal human rights principles set forth in the declaration really are. From its inception, the declaration was criticized in some regions as a statement of Western notions of human rights, and that view is still widely held, said Nasira Iqbal, a retired judge of the Lahore High Court in Pakistan.
Iqbal defended the Cairo Declaration of Human Rights in Islam, which articulates human rights principles in the context of Shariah, or Islamic law. The Cairo Declaration was adopted in 1990 by 45 representatives of the Organization of the Islamic Conference. Iqbal described the principles in the Cairo Declaration as complementary to the universal declaration, but some other speakers suggested that it carved out a separate approach to human rights law that is limited by Shariah. “Isn’t that driving a wedge between those countries and the rest of the world?” said Corell.
ABA President H. Thomas Wells Jr. urged lawyers to play a leading role in addresssing human rights issues. “As lawyers, and more importantly as independent professionals that hold governments accountable under law, we work in the forefront of developing, protecting and enforcing human rights around the world,” said Wells, a partner at Maynard Cooper & Gale in Birmingham, Ala.
The program was sponsored by the ABA Section of International Law in conjunction with the association’s Center for Human Rights, the New York City bar, the Paris bar and the Italian bar.
There is reason for optimism because the declaration created a foundation for human rights law, said Jerome J. Shestack of Philadelphia, an ABA past president who co-chairs the Center for Human Rights. “The building of the edifice of law is very important,” he said.
“Law changes habits. People listen to law. Dissenters can use the law as their road to spur government into doing things. And, eventually, the law has an effect.”
ABA Center for Human Rights: Human rights documents by chronology